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	England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Royal Brompton Hospital National Health Service Trust v Hammond & Ors [2002] EWHC 2037 (TCC) (11 October 2002) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2002/2037.html Cite as: [2002] EWHC 2037 (TCC), 88 Con LR 1

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IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

		St. Dunstan's House, 133-137, Fetter Lane, London, EC4A 1HD
		11 October 2002

His Honour Judge Humphrey LLoyd QC

JUDGMENT
1. This action concerns the development of Phase 1 of new buildings for the Royal Brompton and National Heart and Lung Hospitals in Chelsea, London, SW3. Planning began in the 1970s. The NHS entity responsible for the majority of the time was the Board of Governors of the Royal Brompton and National Heart and Lung Hospitals, a Special Health Authority (SHA). The present plaintiff or claimant is its successor. I shall refer to both as RBH. RBH retained a number of well-known and reputable consultants: its architect was Watkins Gray International (WGI); its quantity surveyor was Northcroft Neighbour and Nicholson (NNN) – mainly its Cambridge office; its structural engineer was Clarke Nichols and Marcell (CNM); its mechanical and electrical services engineer was Austen Associates (AA). Later it retained a project manager, Project Management International (PMI). Annex 1 to this Judgment contains extracts from the contracts of engagement between RBH and the various consultants who are the present defendants to this action and other relevant documents. The contract with WGI was dated 8 May 1975; that with AA was dated 18 August 1984; that with PMI was dated 21 January 1986.
2. The project was typical of many hospitals. As built, Phase 1 comprises five storeys of hospital accommodation (one storey is below street level) with a sixth floor and a seventh level for plant. The total internal floor area was approximately 21,500m², arranged around three internal courtyards. The scheme was first started in 1967. An initial submission was made to the DHSS in March 1978. In July 1984 an official announcement was finally made giving a go-ahead for the scheme. In 1986 tenders were received. There was then a hiatus whilst steps were taken to bring the designs within a budget acceptable to the DHSS. A contract was let to Taylor Woodrow Construction Ltd (TWC) but in a joint venture with a sister company (Taymech or TM). I shall call the consortium "TW", unless there is a reason to differentiate between TWC and Taymech. Annex 1 of the judgment also contains extracts from the contract between RBH and TW. The original contract price was £19,967,623. Work began in March 1987. The contract incorporated the JCT conditions (1980 ed). Clause 23 of the main contract required TW to complete the works by the 23 July 1989 subject to any extension of time under clause 25. Failure to complete by the required date would lead to TW being liable under clause 24 to liquidated damages for non-completion of £47,000 per week. Practical completion was certified to have been achieved on 22 May 1990, some 43 weeks and 2 days later than the original contractual date. WGI granted extensions of time covering the entire period of overrun and instructed NN to ascertain loss and expense. By October 1992 a further £5,204,247 had been paid to TW on the advice of WGI and NNN, including amounts in respect of claims. The extensions of time awarded in connection with the project were as follows:

Relevant Event	Period	New Date for Completion
Delayed handover of Chelsea Hospital forWomen (CHW)	10 weeks	1 October 1989
Delayed handover of CHW	1 week	8 October 1989
Vaults and reinforcement	4 weeks	12 October 1989
(concurrent)
Instructions to lay Hydrotite	5 weeks	12 November 1989
Late M&E information	2 weeks	26 November 1989
Instructions to lay Hydrotite (plus 2 weeks for Christmas)	7 weeks	14 January 1990
LEB substation (later revoked)	2 weeks	28 January 1990
Late M&E information and safety cabinets	2 weeks and 1 week	18 February 1990
Safety cabinets and reinforcements	2 weeks and 2 days	6 March 1990
Late M&E information and commissioning	5 weeks and 8 weeks	22 May 1990.

3. TW was not satisfied with the amounts certified. On 16 October 1992 it started an arbitration. This action was commenced by a writ issued on 21 January 1993 but, by agreement, it did not proceed pending the outcome of the arbitration. In the arbitration TW claimed over £17 million beyond that certified. RBH was dissatisfied with WGI's decisions on extensions of time and brought a counterclaim in order to set them aside so it could recover from TW both the amounts ascertained and certified for prolongation and also liquidated damages. In addition RBH claimed that it was not liable to TW in respect of an instruction from WGI to lay hydrotite (one of the issues with which I am concerned). However RBH did not question the amount of loss and expense certified by WGI and paid to TW in consequence of its opinions that AA had failed to provide TW with mechanical and electrical information and that as a result TW had suffered delay and disruption. (That failure is one of the present issues.) As set out above, WGI had decided that although TW had been delayed by 11 weeks by late M&E information, 7 weeks was concurrent with delays for which other extensions of time had already been granted. A further extension of time of 5 weeks for inadequate M&E information was granted on 6 April 1992 to make a total of 16 weeks on this ground.
4. The arbitration was settled on 19 December 1995. It was due to last 40 weeks. RBH agreed to pay TW a further £6,230,975 including TW's costs. RBH had itself incurred over £2 million in costs on the arbitration. RBH now seeks to recover from WGI (the eighth, fourteenth and fifteenth defendants), AA (the ninth and sixteenth defendants) and PMI (the first to seventh and thirteenth defendants) much of what it had paid to TW. RBH was not able to establish how much of the settlement relates to each head of claim. RBH's claims against the eleventh defendant, CNM, concerning the superstructure and substructure, and variations to reinforcement (sections D and H of the statement of claim) have now been settled and are thus no longer pursued. RBH's claims in section I of the statement of claim are also no longer maintained (they concerned the number of variations, instructions, revised drawings and queries.) For present purposes it is to be assumed that the claims against the defendants centre on WGI's decisions and instructions to NNN.
5. The statement of claim was served on 5 August 1997. Thereafter, so far as I can see, the action has been notable for steps which ensured that for some time little real progress was made. Preliminary issues or points were raised for decision but then agreed or resulted in trials of issues which appear to me (of course with the advantage of hindsight) to be of little practical import. His Honour Judge Hicks QC ordered that the action should be tried in four tranches. The first slice was to be 12 days devoted to preliminary issues. The second and third were to be 44 and 40 days long. The last was to be about quantum. As I have said, the preliminary issues were largely resolved by agreement. (The outcome may be seen from Annex 2 to this judgment.) They included what can only be described as non-issues. For example on the last issue which Judge Hicks was asked to decide RBH, PMI, and CNM argued that it should answered: Yes. WGI took "no position". Judge Hicks therefore decided the issue on written submissions from RBH, PMI and CNM (but not WGI) and without oral argument. Not surprisingly in such circumstances, he decided that it should answered in the affirmative.
6. The issues which were ordered to be tried in October 2000 were defined by Judge Hicks with some precision by reference to the pleadings as they then stood. In the event His Honour Judge Seymour QC did not deal with all the issues at the same time and some of his decisions were the subject of appeals. In the spring of 2001 the Court of Appeal decided that there should be a new trial of the bulk of the main issues which were or were to have been tried in October 2000 although some of the judgments of Judge Seymour were not affected. The trial before me covered a great deal of ground. Despite the time that has passed since the project was carried out I was able to obtain a clear picture of some of the difficulties that faced those involved in it, largely as a result of adroit questioning of witnesses of both fact and opinion by leading and junior counsel. In addition counsel made detailed references to the mass of documentation, and presented meticulously prepared and extensive submissions and argument, for which I was grateful. Unravelling them was a daunting task, (at times disheartening and reminiscent of the second labour of Hercules).
7. RBH's current claims are therefore as follows:
8. The "Blue Land" claim or "Contract Drawings" (section C of the statement of claim). This claim is made against PMI and WGI. It is about an area of land known as the "blue land" which was shown as available to TW on a site plan which formed part of the contract documents, but which was not intended to be made available and was not in fact made available. RBH's case is that PMI and WGI were responsible for this error and its consequences. TW advanced a number of claims in the arbitration by reason of this discrepancy and, although RBH denied liability in the arbitration, the settlement included these claims of TW. RBH therefore claims damages on the basis that the breaches of duty by PMI and WGI exposed it to TW's claims and RBH reasonably settled them.
9. The claim about Mechanical and Electrical Information (section E of the statement of claim). RBH maintain that PMI, WGI and AA are liable. The claim is about allegedly late and inadequate M&E information (and in particular co-ordination drawings). RBH submit that AA did not comply with its obligations as to the content of co-ordination drawings which it was to provide and did provide to TW. RBH maintain that the co-ordination drawings produced were late (so that TW was entitled to complain of late information), unclear and inadequate (in that they failed to include sufficient information for TW to use them in order to produce installation drawings or install the M&E services, as appropriate). TW made a number of claims for extensions of time and loss and expense as a result. WGI accepted that the M&E information was late and inadequate, granted extensions of time and instructed NNN to ascertain the loss and expense which TW had incurred as a result. Further claims were advanced by TW in the arbitration and were, RBH contends, the subject of a reasonable settlement. RBH now accepts that it was reasonable for WGI to have decided that the delay to completion of 16 weeks delay (subject to other concurrent delays) was caused by late and inadequate M&E information. (AA does not accept that view.) It claims damages against AA for producing late and defective drawings, and against PMI and WGI for failing to co-ordinate, monitor and manage the production of M&E co-ordination drawings by AA so that TW received the information when it was necessary.
10. Hydrotite: This claim is now against PMI and WGI (the claim against CNM has been compromised). In early 1989 the concrete slabs had not dried out (as a result of a design change made prior to contract) and were not likely to be ready for some considerable time. WGI and PMI investigated the problem. WGI concluded that, although TW was responsible under the contract for the risk of the concrete slabs not drying out, the best course was to instruct TW to apply a surface moisture resistant membrane (hydrotite) at a cost estimated to about £70,000. RBH accepted that advice and TW was instructed accordingly. RBH say that if it had been properly advised, the instruction would not have been authorised, since shortly afterwards TW claimed an extension of time and loss and expense. WGI granted two extensions of time of 7 and 5 weeks, totalling 12 weeks (including 2 weeks for Christmas), and instructed NNN to ascertain loss and expense (£858,132 was paid before the arbitration). TW claimed still further amounts in the arbitration. RBH now wish to recover damages from PMI and WGI for incorrect and incomplete advice as a result of which it had to pay TW and had to settle TW's claims under this head as part of the overall settlement of the arbitration. RBH accepts that WGI's instruction caused critical delay of 7 weeks (5 weeks as found, plus two for Christmas).
11. RBH also made claims in section G of the statement of claim in respect of extensions of time. Its claim against PMI was dismissed. Its claim against WGI succeeded but only in respect of the second extension of time of 5 weeks for hydrotite. Judge Seymour held that it was negligent of WGI to grant the extension of time of 5 weeks (out of the total extension of 43 weeks and 2 days). He did so as WGI had made an error of computation. (AA was not concerned with and did not take part in the trial leading to that decision.) As I have set above, RBH now accepts WGI's decision on the ground of late and inadequate M&E information.
12. In accordance with Judge Hicks' decision issues relating to quantum and mitigation may be the subject of another trial. The course of this case so far and of this trial shows how important it is either to be certain where to draw the dividing line between, on the one hand, liability and causation (including heads of loss) and, on the other hand, the quantification of the heads of loss, or to draw the line in such in a way that the inquiry cannot be academic and is focussed on the losses for which a defendant is said to be liable.
13. Consistent with the history of this case the trial of these three heads of claim was not straightforward. In order to avoid witnesses having to repeat evidence already given I directed that notice should be given of any parts intended to be relied on. There was limited compliance with this direction. This could not of course take account of subsequent decisions not to call a witness. That led to references to earlier evidence but at times by way of adverse comment on what had been said and in a few instances to suggestions as to why the witness had not been called. I have preferred to refer to and to rely on the evidence of witnesses who were called. Since most of the events occurred over ten years ago and since this action has been in train for years some prospective witnesses were no longer available through illness or death. Thus of the principal possible players RBH relied on four witnesses from TW: Mr Lawrence Hall, Taymech's deputy project engineer, Mr P J Hyde, Taymech's deputy project manager; Mr Stanley Drummy, TW's electrical contracts engineer; and Mr R W Edgeley, TW's senior project engineer, and from its own staff only on Mr Douglas King and, somewhat at the last moment, Mr J.R Plant OBE, RBH's former General Manager, who retired some years ago and, for understandable reasons, had previously not been able to give a witness statement. In the event, although at times he did not wish to go further than the documents (and at other times his recollection was not in accordance with records), he was clear and precise when giving evidence and demonstrated that he had had a good grip on the project (although he relied on others, in particular Mr King, Mr Massey of PMI, and on WGI). I therefore do not accept the submission made on behalf of AA that his evidence added nothing of value as he had been out of touch for the best part of 10 years since his retirement. I do however recognise that neither version of his evidence in chief does full justice to him as both were apparently written up by RBH's solicitors. To have to require a witness to go through and sign a statement at 10.15 p.m. on a Saturday night whilst a courier is waiting outside his home is not in the best interests of the party tendering that evidence.
14. In addition RBH was not able to call Mr Peter Down its M&E expert. However it was able to call Mr Terry Dix, BSc CEng FIMechE FCIBSE MIHEEM, a director of Ove Arup & Partners, who had assisted Mr Down in the preparation of his reports and had met the other experts both with and without Mr Down. Mr Dix indicated clearly where his views differed from those of Mr Down but in general and not surprisingly given their working relationship, they coincided. I doubt if RBH lost anything by the substitution forced on it late in the day. Mr Dix was criticised on a number of grounds to some of which I shall come. However AA submitted that the evidence of Mr Dix (and thus, as adopted by him, of Mr Down) had to be regarded with considerable caution as it had contained an unsupportable and misplaced allegation of professional negligence concerning the events prior to 1987. (The issue is not before me.) Mr Down had said that AA ought to have produced co-ordination drawings prior to the preparation of the Bills of Quantities: Mr Dix said that he agreed with Mr Down. AA submitted that these conclusions were in the face of the known facts (and which Mr Down who had been involved in the case since 1991 must have known about it) or even if they had not been told of them, then they had failed to follow up the case in AA's defence. They had failed to give proper attention to the facts, i.e. that RBH had planned in 1985 the project should go out to tender before AA produced co-ordination drawings. These submissions have force. However it was clear that the case had been prepared and conducted in a traditional manner and that in this respect (amongst others) had failed to take account of the changes that would now require an expert to be properly briefed, given clear terms of reference and to produce a report after a process (including meetings with other experts) whereby all facts or assumed facts would be known before a Report was served for use in the proceedings. Unfortunately criticisms of this kind could be made of virtually every expert in this case. It became very apparent in the course of his evidence that Mr Dix had tried to consider all relevant factors and I am not prepared to treat his opinions with caution simply because he adopted an opinion of Mr Down (which is now irrelevant) which was evidently mistaken. Any criticism to be made would appear to be best directed to RBH's other advisers. RBH elected not to call either Mr Owen Luder who was its expert on architectural practice (and whose evidence during the trial in October 2000 had attracted criticism) or Mr Roger Gibson (its expert on programming matters), although some of his opinions surfaced in the course of the trial. RBH did call Mr David Adams to provide expert opinion on project management.
15. PMI would have wished to call Mr John Wragg, PMI's resident project manager, but he was not well enough so his evidence was confined to his witness statements. He had retired from PMI in 1991 and is now in his mid 70s. PMI was able to call Mr Brian Teale (the seventh defendant), a partner and subsequently, when PMI became incorporated, a director of PMI until 1993. He was described by PMI as the "PMI partner responsible for all engineering services co-ordination". He had been very involved on the project. At the beginning he spent most of the week on it but once TW was appointed he did less. The last meeting that he attended was in November 1987. PMI's expert was Mr Michael Coleman, a partner of Hornagold & Hills, who was quite knowledgeable although not as experienced as Mr Adams. He had some surprising gaps in his knowledge, such as the period required to produce co-ordination drawings. Neither PMI nor WGI thought it necessary to call the experts retained by either or both: on M&E matters, Mr David Arnold; on, programming, Mr Simon Olimi Kabuzi, nor did PMI call its expert on architectural matters, Mr Leslie Welch.
16. WGI called Mr Peter Hutchings. He had been involved in the project since 1985, first as a Senior Architectural Assistant. In 1987 he became an Associate of WGI and remained so until he retired in 1998. He worked on the project full time until 1990 and as required until June 1992. He became the project leader within WGI in about March 1986 working under the supervision of Mr Richard Blair, who was the partner in charge and the project architect. Mr Hutchings said that it was an understatement to describe Mr Blair as "a fairly forceful individual, who is capable of making his views known if he wished". (Mr Ivor Berresford, the 14th defendant, was the senior partner.) None of the experts that had been retained on behalf of WGI were called, i.e. Mr Arnold, Mr Ian Wylie on project management, Mr Peter Smith on programming, Mr Stuart Hendy on architects' practice, although some views in reports were referred to during the course of the trial.
17. AA called Mr Robert Edwards, a partner and then a director of AA. His field was primarily electrical engineering which was of less relevance to RBH's case than mechanical services. However he had a lot to say about them, much plainly not derived from his own first hand knowledge. He was rightly described, with cogent supporting references, in RBH's closing submissions as partisan and argumentative so I do not place much store by his evidence. At times he avoided answering questions directly. Mechanical services were however the province of Mr Paul Tyler, a partner of AA who gave evidence. I do not accept the same criticisms that RBH made about the evidence of Mr Tyler, which although factually correct, seemed to me to be not unusually partisan and no more defensive and unresponsive than would expect from some one who had to give evidence about events that happened a long time ago, many of which would not have concerned Mr Tyler directly, and some of which could not now be explained or defended by him. AA's principal expert, Mr Stephen Edwards, a former senior partner of Hoare Lea & Partners and consultant to it, was not well enough to give evidence in court. With the assent of RBH his report was put in, subject to reservations by RBH about weight (which in this instance were more than formal). Mr Leslie Mackenzie (who had assisted him) was called as a substitute, although he was not as well qualified or as experienced as Mr Edwards. Mr Edwards and Mr Mackenzie produced a series of Progress Summary Charts which were intended to show that AA had in all the circumstances exercised reasonable skill and care. Whilst they were found by counsel for RBH to be useful aids in cross-examining AA's witnesses, like many such documents they were dependent on assumptions or methodologies which were not always made good so they did not have value and faded into the background. AA also called Mr Christopher Miers, an architect and the principal of Probyn Miers, and who described his practice as architectural consultancy and dispute resolution. Although Mr Miers was a practising architect in the sense that he had from time to time (and recently) designed buildings, it appeared from his evidence that his forte had for some years been in the field of analysis of defects, handling remedial works, giving evidence, being an arbitrator and other activities related to dispute resolution. In the 1980s shortly after qualifying he had been engaged on the design of a research and development laboratory for IBM at Havant and had then been part of a large team working on the details of the design of a new district general hospital. He had not been the project architect and thereafter had only been involved in aspects of the design of a hospital.
18. RBH invited me to conclude from the circumstances which led to Mr Stephen Edwards being unable to give evidence that Mr Edwards had no confidence in his report. This submission was not without justification. AA in its opening submission had said, a propos of RBH's expressed intention to rely on the report of WGI's expert, Dr Arnold, and to put his report in evidence if he were not called (as happened), that "if Dr Arnold's views are not tested in cross-examination, his report will be of little weight". (This submission was repeated by virtually everybody else at some stage in relation to other prospective witnesses.) I deal here only with the fact that Mr Edwards was not able to come to court to present his opinions and to be questioned on them. There was no indication at the CMC that Mr Edwards was unwell and he attended meetings between the experts and signed statements of matters agreed and disagreed until 19 June (when, despite reservations which had by that time been known to AA's solicitors, medical advice was given that he was fit to give evidence). Two days later, on day 11 (21 June), AA's solicitors notified everybody that Mr Edwards was not likely to be able to attend court (and it later appeared that there had been real concern some weeks earlier). It seems that the amount of preparatory work "together with the prospect of rigorous cross examination" were taking their toll. By 25 June Mr Edwards' doctor was very firmly against Mr Edwards being cross-examined. Mr Edwards was however not unfamiliar with court work so RBH submitted that anxiety having to justify his conclusions was the real reason for Mr Edwards' sudden and final deterioration. RBH's suspicions were reinforced by the timing of the revelation of the true state of Mr Edwards' condition. However on the information and reports given to me I conclude that Mr Edwards' condition was one which unfortunately affects many people. He had retired from his firm some four years earlier and, but for the prolonged course that this action had taken, he should ordinarily have given his evidence not long after he retired. Anxiety about having to give evidence does not mean the person is worried that the evidence might be found to be wanting. It could be increased by the meetings with other experts, such as Mr Dix (who was patently on top of the main points and mastered much detail in a short period). The preparatory work required for this trial and the prospect of having to find chapter and verse at short notice amongst the mass of material would tell on many people, even those who gave expert evidence regularly. All these factors both individually and taken together could account for Mr Edwards' ultimate state. AA said that RBH needed a medical report to justify its submission, but I do not consider that it did and in any event Mr Edwards should not have been subjected to an examination. The party most prejudiced by the absence of Mr Edwards was AA, for the reasons given in its opening submission. Mr Edwards stood up for his views in some of the experts meetings although the statements of matters that were not agreed do not record why they might be right. I shall therefore assume that he sincerely believed that his opinions were sound. I therefore decline to draw the inference, from the grounds relied on by RBH, that Mr Edwards' views should not be accepted at all, although in the circumstances it is not possible to give much weight to many of them where they were in issue, as they required to be justified by him, especially in the light of Mr Dix's evidence.

Expert Evidence

19. Submissions were made, notably on behalf of WGI and PMI, as to the role of expert evidence. In addition to self-evident propositions, such as that it is irrelevant if a person was negligent in arriving at advice if the advice was in fact correct or that which a competent person would have given (Watts v Savills, CA, 16 June 1988, unreported), Mr Taverner for WGI submitted that in deciding whether some one had fallen below a proper standard of professional competence (see Jackson and Powell, Professional Negligence, 4th ed., 1997, para. 1-04 and J.D. Williams v Michael Hyde & Associates Ltd [2000] Lloyd's Rep PN 823 at 834) it was necessary to bear in mind that the mistake had to be one which "no reasonably well-informed and competent member of that profession could have made" (per Lord Diplock in Saif Ali v Sydney Mitchell & Co [1980] AC 198 at page 220) and that it had to be clearly established, especially given the difficulty in reproducing the circumstances many years after the event. Mr Taverner contended that where a person had acted in accordance with a practice accepted as proper by a responsible body of opinion within the relevant profession, the court will not find him negligent, merely because there is a responsible body of opinion within the profession that takes a contrary view, or because the court "prefers" the body of opinion that supports the claimant's case: Bolam v Friern Hospital Management [1957] 1 WLR 583; Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634. That test has for example been applied to architects. In Nye Saunders & Partners (a firm) v Alan E Bristow (1987) 37 BLR 97 at page 103, Stephen Brown LJ said:

"The duty and standard of care to be expected from (the architect) 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. The onus of proving negligence, of course, rests firmly upon the person who alleges it"

However Mr Taverner acknowledged both that not every claim of professional negligence had to be supported in that way and that none of the RBH claims which I have to decide had at its heart an issue involving competing schools of professional practice, such as the court had in mind in Bolam. Mr Williamson also accepted that RBH's case against PMI in respect of the hydrotite claim (i.e. that PMI failed to advise RBH of the (unspecified) risks of additional non-direct costs and delay consequent on the decision to authorise the laying of hydrotite, to which I shall come later) did not require the Bolam test, and that the evidence from the experts on project management in respect of the blue land claim and much of the M&E was not truly evidence of practice but of personal re-action. However both submitted that it did not follow that expert evidence was not needed where the Bolam test did not apply. Mr Taverner prefaced his submissions with a useful resume of the types of mistakes that lead to claims of professional negligence: giving factual advice that is incorrect or incomplete; omitting to inform the client of a fact, either because the professional person is unaware of it, or because he or she fails to appreciate the need to communicate it; giving "non-factual" advice (such as a recommendation or prediction) that is wrong or acting in a way that is wrong because it is based on an incorrect or incomplete understanding of the facts; giving non-factual advice that is wrong because, though based on a correct and complete understanding of the facts, the wrong conclusions have been drawn from those facts; omitting to give non-factual advice or not acting, because the need for such advice or action was not foreseen; taking action that is inappropriate in the relevant circumstances (here what is appropriate may depend on contractual provisions, laws or codes of practice, risks, and the client's instructions and objectives). Mr Taverner also submitted that however careless a professional person may be in considering the facts, forming an opinion or determining what action to take, there is no liability if the advice or action complained of was the appropriate action or the correct advice. He cited Matto v Rodney Broom Associates [1994] 2 EGLR 163 at 168: "A professional man is entitled to be lucky", and also Watts v Savill (unreported, 16 June 1998, Court of Appeal). However this submission is about causation: there is no liability because the negligence has not or would not have caused any loss or damage.

20. The circumstances in which expert evidence may be needed have recently been restated. In J.D. Williams v Michael Hyde & Associates Ltd [2000] Lloyd's Rep PN 823; [2001] BLR 99, Ward LJ referred to Bolam and said:

"The question is, however, in what circumstances should one apply the test? There are qualifications to it as follows.

1. One such qualification is provided by Bolitho v City of Hackney Health Authority [1998] AC 232 namely:

"But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible."

21. Another is referred to in Nye Saunders where Stephen Brown L.J. held:

"(The judge) was entitled to take the view that the evidence of (the architect's experts) did not constitute evidence of a reasonable body of architects accepting as a proper practice that no warning of inflation need be given when providing an estimate of the cost of proposed works. It seems to me that the learned judge had ample evidence before him which entitled him to find that there was a failure on the part of Mr. Nye to draw the attention of the client to the fact that inflation was a factor which should be taken into account when considering the ultimate cost and that that failure constituted a breach of the Hedley Byrne type duty to the defendant.

3. The third qualification is expressed by Lloyd L.J. in Gold -v- Haringey Health Authority [1988] 1 Q.B. 481 at 490:

"If the giving of contraceptive advice required no special skill, then I could see an argument that the Bolam test should not apply."

22. In relation to the third point, Mr Williamson pointed out that in Worboys -v- Acme Investments Ltd (1969) 4 BLR 133 at page 139 Sachs L.J, had said very much the same:

"Now Mr Harvey urges that this is a class of case in which the court can find a breach of professional duty without having before it the standard type of evidence as to what constitutes lack of care on the part of a professional man in the relevant circumstances. There may well be cases in which it would be not necessary to adduce such evidence – as for instance, if an architect omitted to provide a front door to the premises. But it would be grossly unfair to architects if, on a point of the type now under consideration, which relates to a special type of dwelling, the courts could without the normal evidence condemn a professional man."

In my view the ultimate decision of the Court of Appeal in Nye Saunders is also consistent with this third point, as Sedley LJ pointed out in his judgment in Williams see page 834-5: "Nye Saunders, despite the concession that it was governed by the Bolam test, was manifestly an exercise in standard-setting by the court itself and should be so regarded".

23. In Williams Ward L.J. also referred to Midland Bank Trust Co. Ltd -v- Hett, Stubbs & Kemp (a firm) [1979] Ch. 384 which, although it could be viewed as refinement of the third qualification, is more in the nature of a general reservation about the requirement for expert evidence as a prerequisite for a finding of professional negligence:

"As I read the evidence the experts were doing no more than putting themselves forward as reasonably competent architects and then saying what they would have done in the circumstances in which Mr Warrington found himself. In my judgment this case could well have been decided and disposed of by adoption of Oliver J's views in Midland Bank Trust Co. Ltd -v- Hett, Stubbs & Kemp (a firm) [1979] Ch. 384, 402:

"Clearly, if there is some practice in a profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage, evidence of that can and ought to be received. But evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks that he would have done had he been placed, hypothetically and without the benefit of hindsight, in the position of the defendant, is of little assistance to the court…".

Moreover on the facts of Williams the Court of Appeal held that the Bolam test was not applicable since the conclusion in question required "the exercise of judgment ….in deciding whether further investigation of the relevant risk was required or not [and] did not of itself require any special architectural skills" (per Ward LJ at page 831). In my view the ultimate decision of the Court of Appeal in Nye Saunders is also consistent with the second point, as Sedley LJ pointed out in his judgment in Williams (see page 834-5).

24. Mr Taverner submitted that nevertheless expert evidence might be required where the Bolam test does not apply and that Williams did not establish that the claimant did not have to call expert evidence. He relied on the judgment of Sedley LJ (with whom Nourse LJ agreed) in that case since Sedley LJ referred to the need for expert evidence to help the court in its decision. Mr Williamson contended that, subject to the qualifications to the Bolam rule set out in Williams, a claimant must still adduce competent expert evidence to support allegations of professional negligence. In my judgment these submissions need to be expanded. First, the Bolam test applies where the court cannot answer the question without expert evidence as to the body of professional practice prevailing at the time where the negligence lies in not following established practice. It is required both to prove that practice, as a matter of evidence, since the court would not otherwise know of it either as a matter of common sense (or judicial notice) or as a matter of expertise which the court should possess (see Oliver J in Midland Bank Trust). Secondly, it is needed in certain situations, since as a matter of policy, since a professional person should not be held liable without the court being satisfied that any competent professional would have done otherwise and that as a result the consequences of the negligence would not have occurred. However as Sedley LJ observed in Williams it cannot be an absolute requirement without which the court cannot reach its decision. Thirdly, however, expert evidence may be needed to help the court assess the available evidence, such as, in a case of professional negligence, by indicating what factors or technical considerations would influence the judgment of a professional person, or, in other instances, aspects of the way in which construction work is executed which might affect findings of fact, e.g. as to the extent of delay or disruption. That evidence is not needed at all where the decision is a matter of common sense (the front door in Worboys), but it is helpful where the allegation does not require or should not depend on evidence of established practice, such as, in a case of professional negligence, where there is no such practice and therefore the court has to understand what would go through the mind of a professional person in those cases where what would be common sense to the rest of the world would not or might be not sensible in that profession or occupation. The factors or considerations that would need to be borne in mind might therefore be rehearsed for completeness. It may also be desirable to present that evidence so that the judge knows that his conclusion is not inconsistent with the views of others whose opinions deserve respect. However in those cases, whilst most claimants will provide expert evidence, it is not indispensable and a party may succeed without it: see Williams. The court is able to form its own view, and is entitled to do so, without the need for such evidence of practice or opinion from an expert for this is the territory where the purposes or the upshot of the opinion is no more than a statement of belief as to he or she would have done in the circumstances, presented as evidence of practice. Thus judges of this court possess and acquire knowledge of the construction industry and other areas of commerce so that they do not require such expert evidence to enable them to assess evidence, not only in relation to common questions of professional practice but also in relation to matters such as causative impact of events in cases of delay or disruption or ordinary practice in the construction and other fields of commercial disputes which come to this court. If that were not the case there would be little point in having specialist courts, such as the TCC. The same applies to the assessments to be made of events, such as their criticality, or to the proper inferences to be drawn from conduct in technical fields. This is what Oliver J was referring to in Midland Bank. Thus I do not accept RBH's submission in so far it suggested that there has to be expert evidence to support a finding that it was necessary for the contractor to have a drawing by a certain time (although it is fair to record that it was also put expressly on the basis of providing assistance), nor do I accept a submission made for PMI if and in so far as it was that expert evidence was needed before a finding of disruption could be made. It is relevant also to decisions under Rule 35.4 of the CPR as to whether or not expert evidence is to be permitted. Rule 35.1 says: "Expert evidence shall be restricted to that which is reasonably required to resolve the proceedings" so expert evidence has to be justified as admissible and necessary or really desirable for the reasons that I have set out.
25. It follows that the court may in law arrive at its decision, even though it is not supported by expert evidence or by the expert evidence tendered provided that it is otherwise sustainable. Nye Saunders provides a useful illustration. Of course the court should be confident that its decision is not inconsistent with what professional people might have expected at the material time because if is not then it calls into question whether it is the right decision. Hence there will be instances where a party may lead evidence which is no more than what the witness would have said or done (or not said or done).
26. Moreover since under the CPR an expert is not the property of a party it is in any event no longer necessary for a party to have tendered an opinion from the expert retained by it in order to support the case put forward. The role of the expert is now "to help the court on the matters within his expertise" and that "duty overrides any obligation to the person from whom he has received instructions or by whom he is paid". A case may succeed with the assistance of expert evidence tendered by another party (in so far as it is necessary or desirable). That said, Mr Taverner, for example, was right in his submission that since RBH did not call Mr Luder and WGI did not call its expert, Mr Hendy, it can only succeed, on the facts that may be found, to the extent that its claims against WGI do not depend on evidence which can only be provided by an expert.
27. For the purposes of this trial these considerations need to be further developed since in the case of all three defendants the duties owed by them or to be expected of them were set out at some length in their contracts or in documents that were and are to be treated as having comparable force, such as the Project Procedures Document (annexed to the judgment). In addition, in relation to PMI, project management is even now, according to Mr Adams "an emergent professional discipline" and at the time when this hospital scheme was being carried out had not been applied to such projects. It had of course been used elsewhere, notably on energy projects and other complex projects, frequently with international aspects. That much is well known to all. Mr Adams said that in the construction industry, even today, very few people train to be project managers as their primary profession and most will have migrated from other professions - architect, engineer, surveyor, builder, etc. (Mr Teale was Chartered Building Services Engineer, Mr Wragg was a civil engineer working in contracting, Mr Adams had been a quantity surveyor and Mr Coleman was a member of the Chartered Institute of Building.) Mr Adams said in his report that the British Standard for Project Management B56079 was not published until 1998 and that it was not until the late 1980s that contract forms like GC/Works/1-Edition 3 identified the role of the project manager in the contract. The role of the project manager was recognised in the 1986 Edition of Capricode in which it sets down the minimum service requirements for the project manager but in the context of somebody employed by the relevant authority (such as Mr Douglas King). Mr Adams said that at the time of PMI's engagement in 1985, "project management standards and practices were not recognised as being codified within the construction industry. Terms and conditions of engagement and the duties of the project manager were drafted usually either by the project management companies or by employers' legal advisors. It was common practice for project managers to send a copy of any service agreements to their solicitors and insurers before signing to avoid any onerous commitments that could not be fulfilled." He did however say that although there were no codified standards and practices in existence at the relevant time there were standards of practice which were generally recognised and accepted by project managers which allowed them to distinguish between good, adequate or inadequate performance. However Mr Adams made it clear that, since "adequate performance would have been one which fulfilled the obligations of the retainer to a minimum level we would expect from a competent project manager" with the inadequate falling below that level, the opinion would be whether the terms of the retainer had been met. Thus Mr Adams could not provide evidence of standards of practice and, to be fair to him, did not pretend that he was doing so, divorced from PMI's contract. From time to time his evidence was however illuminating. Thus in relation to PMI's role in relation to the hydrotite issue he said: "My experience, and that of many of my contemporaries, is that the project manager is expected to ask more questions, add more value….". This neatly encapsulates a central part of the role of the project manager as co-ordinator and guardian of the client's interests. Mr Adams' evidence however really fell into the category of answering the questions that I have to answer or saying what he would have done in the circumstances. Mr Williamson accepted that all the project management evidence (and the architectural evidence) was of "little assistance" as Oliver J said in Midland Bank, with which I agree. (He did contend that expert evidence was needed on delay and disruption on the hydrotite claim.) Mr Williamson was therefore right in his submission that the Project Procedures Document was important. However I do not accept Mr Williamson's other submissions that Mr Adams' evidence should be disregarded because, unlike Mr Coleman, he had no direct personal knowledge of health service project management and was not an experienced expert witness. As project management in the building industry was in its infancy in the late 1980s it is hardly surprising that there was no body of opinion as to good practice especially if project managers had procedures documents to set the standards. Acceptance of expert evidence does not depend on previous experience as a witness. That would lead to evidence about how many times that witness's evidence had been accepted. It might be thought to help juries in the United States but it has no place in trials in this court. As I have already said, an expert is called to help the court and is not and should not be proffered for his or her powers of persuasion and presentation. What counts are the reasons for the opinions and whether the witness has had sufficient experience for those reasons to be founded on reality and practice and not supposition. Mr Adams was very candid about the paucity of his directly relevant experience of hospital projects but plainly he had much useful experience of other complex projects. Mr Adams quoted from a FIDIC form of 1980 for overseas engineering installations in which project management was defined as: "The mobilisation, under a single responsibility, of a multi-discipline team required to implement the project within the owner's objectives of schedule, quality and costs." Since project management is essentially about harnessing and co-ordinating the talents and resources of the other members of the team and since the types of project vary so widely evidence of the practice of a project manager (which is in any event usually carried out by a number of people with differing backgrounds) is not dependent on whether a person has managed a particular type of project before.
28. Whether it is either necessary or desirable for expert evidence to be tendered, there is little doubt that a claimant will not succeed unless the court has been satisfied that the defendant fell so far short of the requisite standard of care as to constitute negligence. Mr Taverner referred to Copthorne Hotel (Newcastle) Ltd v Arup Associates (1996) 58 Con LR 105 for an illustration: even where a professional person has advised incorrectly or otherwise made an error of judgment, if negligence is usually only one of a number of possible explanations, the claimant cannot simply rely on the magnitude of the error, however great, to prove the case. He also relied on some observations of Mr Ian Hunter QC (sitting as a deputy judge of the High Court) in Mortgage Express v Joliffe & Flint (unreported, 20 December 1995):

"Moreover, to make good a charge of professional incompetence, for that is what it involves, will often involve a fellow professional in the same area of practice indulging in an attempt to second-guess the judgment of the defendant sometimes many years after the defendant was called on to express his professional opinion and in circumstances where neither party is able with confidence to replicate the precise circumstances in which the opinion under attack came to be expressed and where the defendant for this reason may well find himself seriously disadvantaged. It is for reasons such as these that an allegation of should not be lightly made and that the law requires that such an allegation should be distinctly proved."

However in such circumstances the position of such a party is the same as any other defendant. A claim for professional negligence is a claim for breach of contract or of some contractual duty of care and the fact that a defendant's reputation is at stake does not require the professional person to be treated differently from somebody comparable, such as a specialist manufacturer or supplier.

29. As regards what might constitute a failure to exercise care I was reminded of some well-known statements which I have aimed to follow. In Sutcliffe v Thackrah [1974] AC 727 Viscount Simonds said at page 760:

"It by no means follows that a professional valuation or opinion was negligently given because it turns out to have been wholly wrong. … Whether or not there has been negligence is, of course, a pure question of fact depending upon the particular circumstances of each case."

In Saif Ali v Sydney Mitchell & Co [1980] AC 198 Lord Diplock said at page 220:

"No matter what profession it may be, the common law does not impose on those who practice it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made."

In addition, when discussing the position of PMI, WGI or AA (1) although for convenience I may refer to PMI, WGI, or AA, where it is necessary to identify a person, the reference is to the relevant partner or individual responsible; (2) it is that person's competence which is being considered, although as partner or employee of a reputable entity; (3) the standard applied is that set out in Saif Ali, whether an individual or a firm is being considered.


 
The Blue Land

30. In essence RBH claim that PMI and WGI failed to ensure that a contract drawing (P185) correctly showed the extent of the land available to TW for its site offices and other temporary purposes. Some 18 months after the contract was made and work began TW complained that it did not have the area to which it was contractually entitled (the blue land). WGI sought to ratify or rectify the situation contractually by issuing an instruction, AI 27. TW was paid £11,060 as a valuation of AI 27, although I remain mystified as to the basis of that valuation. TW pursued claims (on 16 January, 14 March and 31 May 1991). In the arbitration the relevant claims were 14 (£1,166,577 in all, including interest, for lack of possession of the blue land), 18 (£1,485,510) and 20 (£1,278,747) (both for delay – it being said that lack of the blue land delayed TW), 24 (£464,128 including interest, being the cost of claims preparation) and 34 (£287,218, including interest, being a general claim). RBH counterclaimed the value of AI 27. RBH say in Schedule A to the RASC that the following amounts are attributable from the overall settlement and are recoverable: 22.5% of claim 14 (£262,480); 35% of 16.66% of claims 18 and 20 (£460,790); 50% of 12.5% of claim 24 (£29,008) and 17.5% of 10% of claim 24 (£5,026). They total £468,762. RBH had denied liability in the arbitration. RBH now seeks to recover that amount from PMI and WGI. But for the very striking and almost incredible figures one might wonder why such a mundane set of events could still be controversial. Part of the reason lies in the time that has elapsed since the events took place. Many of them were routine and accordingly little or no account was taken at the time. Although TW had an apparently valid claim for breach of contract it is surprising both that TW did not realise it for so long and that its supposed losses were thought credible.
31. The case against WGI is that it ought to have seen that its drawing PW 185 gave TW more land than was actually available. The case against PMI is that PMI failed to detect that its instructions to WGI in May 1986 had not been properly implemented and that the blue and had been erroneously included in Drawing PW185.
32. The facts are as follows. In 1978 RBH acquired land south of Britten Street. It was intended for Phase 2 of the development of the hospital but it was not immediately needed. Most of it was let to tenants who used it as a garden centre known as the Chelsea Farmer's Market (CFM). On the plan annexed to the lease dated 26 June 1978, the area was split into two parts, identified as the blue land and the pink land. The lease required CFM to demolish the existing buildings on the blue land and was drafted so as to enable RBH to take back control when necessary so as to enable it to be used by the contractor for phase 1. Although the blue land remained unaltered in the leases until after the contract was let, RBH's intentions for use by the contractor changed from time to time. Of the alternatives considered, the most relevant is the area confusingly referred to by Mr King in his witness statements as "the Original Proposed Reserved Land" which was larger than the blue land as defined in the lease (see WGI enclosed with a letter to Mr King dated 27 March 1980). On 17 October 1980 Mr King sent a marked up ordnance survey sketch to the Hospital's solicitors, Norton Rose, showing the Original Proposed Reserved Land as it was apparently to be identified on the renewal of CFM's lease, but this was not pursued.
33. In 1984, following further discussions with CFM, Mr King reverted once again to the Original Proposed Reserved Land. Mr King's note to the Estates Secretary, Mr Travis, dated 29 August 1984 shows that he regarded this decision as final and "not for discussion". On 8 May 1985 Mr King sent a memo to Miss Vanessa Carden, RBH's Estates Secretary:

"Following our discussion this morning, I enclose a site plan showing how much of the Kingsmead site we think it would be desirable to offer the Phase 1 contractor. You will see that it is somewhat larger than 'the blue area' which has been generally talked about before."

The site plan enclosed no longer exists. Mr King could not remember what the enclosure showed but admitted that it might have shown the Original Proposed Reserved Land.

34. On 24 April 1986 NNN sent to PMI a copy of the draft Preliminaries including a section headed "Description of the Site". In this the letter NNN said: "Items which particularly require consideration of other parties and/or completion following receipt of outstanding information have been appropriately marked." The draft read:

"BILL NO 1

GENERAL CONDITIONS AND PRELIMINARIES

Page 1/1

A. GENERALLY SCOPE: these conditions are supplementary to those stated in the invitation to tender and on the Form of Tender.

ACCEPTANCE OF TENDERS: the Contractor shall allow for a period of 6 weeks between the date of tender and acceptance during which the tender documents may be checked and approval sought from the Employer.

POSSESSION OF SITE: It is anticipated that the date for site possession will be within 8 weeks of the date of tender submission.

B. PRICING OF BILLS

ALTERATIONS AND QUALIFICATIONS to Bills of Quantities shall not be made without the written authorisation of the Quantity Surveyor. Lined through amendments will be disregarded or the entire tender containing them will be rejected depending upon the nature and extent of the amendments.

UNPRICED ITEMS: costs relating to items which are not priced will be deemed to have been included elsewhere in the Bills of Quantities.

LUMP SUM ADJUSTMENTS: should the Contractor add or deduct a lump sum in any part of the Bill it will be assumed that such adjustment represents a percentage of the value of the Contractor's Own Work (i.e. the Contract Sum exclusive of P.C. and Provisional Dayworks) unless otherwise indicated.

ERRORS: errors in the priced Bills will be dealt with in accordance with the Code of Procedure for Single Stage Selective Tendering 1977. Alternative 1.

C. SUBMISSION OF TENDER

At the time of submitting the Tender, one fully priced and totalled copy of the Bills of Quantities, duly certified as being the copy upon which the tender is based, shall be submitted under sealed cover to the Quantity Surveyor using the label provided.

The Contractor is to prepare and submit with his tender a fully detailed time schedule and method statement in accordance with which he proposed to execute the works. D. [In handwriting] The Contractor is to submit with his tender a fully detailed time schedule and method statement in accordance with which he proposes to execute the works. Page 1/2:

A. Acceptance of Tender

As soon as the Tender is accepted the Quantity Surveyor will prepare two copies of the Contract Bills.

JOINT VENTURE

Tendering shall be on a joint venture basis with each tenderer comprising a partnership of a general building contractor and a building services contractor formed specifically for the project and with the primary objectives of a joint and several liability of the partners for the execution of the Contract and the avoidance of a sub-contractual arrangement in respect of the generality of the services elements. To the extent that sub-contractual arrangements are required in respect of certain restricted specialist installations or work, whether nominated or domestic, such sub-contracts shall be between the sub-contractors and the joint venture partnership rather than between the Sub-contractors and one of the joint venture partners. This latter requirement is a particular application of the general intention that the term 'Contractor' throughout the Contract Documents shall be deemed to apply to the successful Joint Venture Tendering Partnership.

THE PARTIES

The names and addresses of the parties to be named in the Contract are as follows:

Employer: The National Heart & Chest Hospitals Project Manager Project Management International The Lodge Harmondsworth West Drayton Middlesex UB7 OLA

Architect: Watkins Gray International (UK) Alexander House 1a Spur Road Orpington Kent BR6 OQR have been appointed by the Board of Governors of the National Heart and Chest Hospitals as Project Managers for the development. Accordingly Project Management International are empowered to exercise the authority of the Employer under the provisions of the Contract.

Quantity Surveyor: Northcroft Neighbour & Nicholson Leda House Station Road Cambridge CB1 2RF The names and addresses of the other consultants and their areas of responsibility are as follows:- Services Engineer: Austen Associates 45 Coombe Road Croydon Surrey CRO 1BQ Responsible for the design and supervision of drainage, plumbing and engineering and electrical installations. Structural Engineer: Clarke Nicholls and Marcell Galena House 8 – 30 Galena Road London W6 OLT Responsible for the design and supervision of the structural elements of the buildings.

DESCRIPTION OF THE SITE

The site is located at Sydney Street, Chelsea, SW3 and is bounded by Cale Street, Sydney Street, Britten Street and the Chelsea Hospital for Women to the North East, South and West respectively.

Access to the site shall be determined by the Contractors in consultation with the relevant Authorities.

WORKING AREA: the Contractor will be confined to the boundaries of the site as marked on Site Plan No.

ADJACENT BUILDINGS: Buildings immediately adjacent to the site are the Chelsea Hospital for Women and No 30 Britten Street.

ARRANGEMENTS FOR VISITING THE SITE: before tendering the Contractor shall examine the drawings and conditions of Contract and visit the site to satisfy himself as to all the local conditions affecting the execution of the Contract including accessibility of the site, local restrictions, the full extent and character of the proposed works, the nature of the ground, the supply of and conditions affecting labour and materials and the execution of the contract generally as no claim in the grounds of want of knowledge in such respect will be entertained. Facilities for the inspection of the site are to be arranged with J Wragg PMI – Telephone No 01-759-0960.

DESCRIPTION OF THE WORKS

THE PROJECT comprises a six storey building with three internal courtyards and has a gross floor area of 21,770 m2 providing adult and children's' general acute, intensive car and heavy dependency beds; operating theatres; pathology laboratories; central kitchens and various ancillary and service departments including main boilers and flues. There are also external works of roads, paths and other paved areas; 'landscaping' including the internal courtyards and external services mains, drainage and the like."

35. In his second witness statement Mr Wragg said that he inserted various comments on the draft preliminaries and discussed them with Mr King before circulating them to CNM and AA, with a request for those firms to send their comments to NNN by 9 May 1986. He said that Mr King had drafted the definition of "The Site" as it was in his handwriting and that the definition of "Working Area" was not complete as the reference to a site plan number had been obliterated. Mr Wragg maintained that at that date he did not know the extent of the land that would be made available. On 8 May 1986 Mr King wrote a memo to Miss Carden in the following terms:

"You mentioned yesterday about the timing of our occupation of the 'blue' land on the Kingsmead site just off Britten Street. This will be required by the middle of September and I think it might be useful if Douglas Bayle, John Wragg (PMI) and myself met to agree the way in which we can provide access to the 'pink' land which I think Bayle does require."

Some of the background to that note can be found in Mr King's evidence where he said that at the beginning of 1986 a decision had been made to move the medical gases compound from its originally planned location to the south of Britten Street to an area on the western boundary of the site adjacent to the Hospital. As a result the offices used by CFM did not need to be demolished and the area eventually made available to TW was freed, subject to the access to which the note refers.

36. On 9 May 1986 Mr King met Mr Wragg and Mr Bayle on site. Both Mr King and Mr Wragg said in their witness statements that at this meeting Mr King showed Mr Wragg the area to be made available to the contractor and that that area was the same as the area actually made available to TW in February 1987. This was only part of the blue land. I do not consider that these accounts are entirely correct. I consider that, as Mr King said, the meeting on 9 May 1986 was concerned not so much with the land to be made available to the contractor, but how access was to be maintained for CFM across the area destined for use by the contractor. On 9 May 1986, after the meeting, Mr Wragg wrote to Mr Hutchings of WGI:

"NHCC PHASE 1 – SITE LOCATION PLAN 03 2621 EWO 1

Please find enclosed a marked up copy of the above plan showing-

(a) Hoarding to MR Unit

(b) The additional area allocated for site offices/parking on the south side of Britten Street.

Both these items are to be referred to in the Preliminaries with a reference to this drawing, as agreed."

37. WGI was thus specifically instructed by PMI about what was to be included in the contract as it would affect the contractor's operations. The letter enclosed a marked up copy of an extract from the ordnance survey which had been given to Mr Wragg by Mr King with the area already marked on it (and was the same as that sent to Norton Rose in 1980). Mr Wragg added a line showing the proposed access over the blue land to the CFM (pink) land and the words "3000 m [sic] to be kept clear at all times". This was intended to ensure that CFM had access. However Mr Wragg did not apparently appreciate that this access might run across the site of a building used by CFM and that the land to be provided to the contractor was smaller than that shown on the plan used for the purposes of the lease. Accordingly the area which PMI treated as designated by RBH was the whole of the blue land subject to a right of access for CFM.
38. Thus in my judgment, despite the evidence of Mr King and Mr Wragg, the area shown on the extract given by Mr King to Mr Wragg correctly represented RBH's intentions. Mr King's memo to Ms Carden of 8 May 1986 makes no reference to any proposed discussions about the extent of the additional area, and there is no other evidence that the area was reconsidered at about this time. It seems inconceivable that either of them would have so acted if they had just decided upon a different and smaller portion of the blue land.
39. Thereafter Mr Hutchings of WGI used the marked up extract to prepare drawing PW 185. It was sent to NNN on 21 May 1986. The letter was copied to CNM, AA and PMI. Against "AA" was "+2" Was drawing PW185 also sent to PMI? PMI maintained that it was not. Mr Hutchings was firmly of the opinion that it was. He pointed out that "+2" showed that AA got two copies whereas it was normal practice to provide one copy. He remained of the view that it was highly likely that PMI got a copy. I agree. In my view it is improbable that the Project Manager did not get copies of all drawings. It is difficult to see how it could have carried out its duties effectually without knowing what each consultant was producing. Moreover in this instance WGI was acting on PMI's instructions. It would not only be WGI's obligation to submit the drawing to PMI as part of the process of demonstrating compliance but it would also be normal to do so, as Mr Hutchings said. PW185 was not a technical document; it was a basic drawing relevant to the contractor's operations and therefore very much within PMI's sphere of operational responsibility. PMI said that it had no record but after the time that has elapsed this negative establishes little. In my judgment PMI received drawing PW185. However PMI did not then (or subsequently) see that PW185 showed an area greater than that which RBH intended.
40. Mr Wragg also drafted an additional clause for insertion in the Bills about the additional area but this was not used on the instructions of Mr Massey because it was "not req'd", presumably because the Bills were otherwise clear (as indeed they were, in my view). I do not consider that the decision not to incorporate Mr Wragg's definition reflected Mr King's attention that the contractor should not be told about the additional area until after tenders were received for Mr. King's intention. Although Mr King apparently assented to this suggestion there is no other evidence of that intention or that RBH or its advisers wished in this respect to deviate from normal tendering practice.
41. NNN incorporated a reference to PW185 in the Bills of Quantities, following the earlier draft. They read as follows:

"DESCRIPTION OF SITE

The SITE is located at Sydney Street, Chelsea, SW 3 and is bounded by Cale Street, Sydney Street, Britten Street and the Chelsea Hospital for Women to the North, East, South and West respectively.

ACCESS TO THE SITE will be from Cale Street.

WORKING AREA: The Contractor will be confined to the boundaries of the site as marked on Site Plan No. 03 2621/PW 185"

In his witness statement Mr Wragg said that he met TW's estimating team on 23 September 1986, and that he distinctly recalled showing them the area that was actually made available, since he had no reason to suspect that the area was wrongly indicated on Drawing PW 185. He said:

"The extent of land to be made available to TW was clear, as the Plot was a self contained unit, clearly defined by boundary fencing separating it from the garden centre and adjacent property.

During the visit I emphasised to TW's representatives that the Plot was for offices and car parking only."

He also said:

"This restriction of use, I understood from Mr King, resulted from CFM's desire to ensure that the land was not used for any purpose which interfered with its business. Thus, it would not have been acceptable for this area of land to be used for storing materials which would have resulted in noise or excessive traffic on the site. Likewise it would not have been acceptable for the canteen to have been located in this area, because of the potential disturbance caused by site workers (up to 300 people at the peak) using this canteen throughout the day. …. I also informed them of CFM's access requirements."

42. The problem with this account is that it seems to include what happened after TW's site visit. CFM's lease was to expire at the end of October. On 29 September 1986 Ms Carden and Mr King met representatives of CFM on site (including Mr Bayle) in order to agree the area CFM was to have on the renewal of the lease. The plans were not accurate. An adjustment had to be made to what had been agreed in May. A note from Ms Carden to Mr King dated 24 October 1986 records that Mr Bayle had then agreed to supply a sketch illustrating what had been agreed at this meeting. Mr King also said: "This information is required by the tenderers and I would appreciate it if you would stir him into some sort of action". Ms Carden chased CFM on 12 November and on 14 November received the plan prepared by Mr Bayle's staff. Whilst generally it showed the area that later became that used by TW, Mr King wanted the dimensions checked and for CFM to put up its fence so that RBH could be sure that CFM was not taking more than had been agreed. In my judgment RBH's agreement with Mr Bayle of CFM resulted in a further reduction of the land to be made available to the contractor or resulted from a realisation that the original marked up extract from the ordnance survey could not be achieved without depriving CFM of an effective access. By 17 November 1986 RBH was happy with Mr Bayle's plan .
43. Tenders were received on 3 November 1986. That from TW was the lowest: £18,721,623. However savings had to be made. (These included omitting an isocrete screed to the concrete floor slabs and saving £10,000 by switching from Hudevad radiators to Stelrad radiators, both of which had later effects.) A Bill of Reductions was issued. A letter of intent was then issued by PMI to TW on 23 January based on approval for £17,967,623 "or such lower sum as may be agreed following the current discussions". TW submitted a priced Bill of Reductions on 7 February and a revision on 11 February but although it achieved the savings desired the overall figure was not within the budget as TW had made other adjustments. A meeting was held on 9 February 1987 to review the negotiations at which it was agreed that work on the site would start on 2 March 1987 and that entry to the area allowed for site offices and car parking would be cleared for 9 February 1987. It was also recorded that NNN would require three weeks to prepare a set of contract documents from the conclusion of the negotiations on the Bill of Reductions. (In the event it took NNN much longer to produce the documents.) Another meeting was held on 13 February which resulted in a final figure of £18,027,623 which was £60,000 above the approved figure. On 16 February a further meeting was held between the Chairman of the RBH Board, the principal quantity surveyor of the DHSS (Mr R.W. Davies) and directors of TW (Mr Frondigoun and Mr Knight). It was agreed that the project should go ahead as the £60,000 could be dealt by reducing contingencies and provisional sums by £30,000 each. Mr King said that the "deal" was then done. (This statement is not however conclusive – see later.) RBH's acceptance of TW's revised tender was confirmed in a letter to TW on 25 February 1987.
44. At a site meeting on 30 January 1987 arrangements had been made for representatives of TW to visit the site with Mr Wragg. Mr Wragg said that on that occasion he asked Mr Agate (TW's project manager) for a drawing showing the layout of TW's site huts on the contractor's compound and how they proposed to use the area. TW produced a sketch plan P/01 of the contractor's area dated 6 February 1987 and sent it to PMI by a letter dated 10 February. It showed huts and prefabricated offices on only part of the area on PW 185. In addition the sketch showed that had TW wished to obtain access to the whole of the area on drawing PW185 it would have had to demolish the gates to the Garden Centre and the fence erected along the boundary. Mr King received it on the same day and sent it to Ms Carden. PMI copied TW's letter and drawing to WGI but without any specific comment: "Copy WGI – FAO B. Hutchings". WGI did not apparently receive it until 16 February. (WGI had not been at the meeting with TW.) Possession in accordance with P/01 was given to TW on 19 February 1987. On 17 March TW sent a revision of its sketch plan (P/01A) to WGI for its approval. WGI approved it on 19 March. Mr Hutchings said in evidence that it did not occur to him at all that it was odd that TW was only using a small proportion of the land shown on PW185 as available to it for offices and parking. He accepted that, had he compared TW's sketch plan with drawing PW185, the differences were obvious and that he would have spotted them and raised them with PMI. Similarly PMI (i.e. Mr Wragg) did not notice the discrepancy.
45. In my view TW's subsequent claim was correct in principle in that it had not received the working area contemplated by the contract Bills and drawing PW 185. Mr Williamson suggested that the contract should be read as if TW was only to have the working area shown on drawing PW 185, not that the site shown on the drawing constituted the working area. Put another way, the Bills did not confer any right to a working area greater than that actually afforded. In my view the drawing did give TW that right. A contractor in the position of TW was entitled to read the drawing (which ranks higher than Bills which are descriptive of what is shown on the drawings and any specification and are therefore subservient – see, for example, clauses 2.2.1 and 2.2.2.2 of the conditions) as conferring the right to the hatched land. TW did not in fact so understand the contact since its method statement expressly stated:

"Site accommodation: All the site offices, stores and messing facilities will be provided in the designated area of Britten Street, opposite the MR unit. The area south of the building will be used as an area to stockpile backfill material ..."

Just as the time it took for the penny to drop and for TW to realise its rights, that fact is nevertheless only a matter for comment unless it afforded RBH some substantive defence. In my judgment Mr Williamson's submission is in this instance a somewhat artificial reading of the contract and is not consistent with its ordinary and natural meaning which is that which justified TW's claim.

46. RBH's case against PMI was that in May 1986 PMI should have checked PW 185 when WGI sent them a copy. RBH did not contend that PMI ought to have checked all prospective contract drawings, but it should have done so since PMI had specifically instructed WGI on behalf of RBH and so should have checked that WGI had correctly interpreted it. PMI was negligent in failing even to check the drawing (or, as an alternative on Mr Coleman's evidence, failing to send it to Mr King to check). If expert evidence is needed to support the case, then Mr Adams and Mr Coleman provide it. The former said very firmly in his evidence:

"Q. Now, taking all those matters into account, Mr Adams, would you agree with me that PMI's error, if such it was, is a borderline error, rather than one that falls into the area of professional negligence?

A. Well, it is clearly not competent to take an instruction from a client, give an erroneous instruction to an architect, fail to check the product of that erroneous instruction. I cannot see how that complies with the reasonable skill and care to be expected of a competent person, never mind a project manager, harsh as it may seem."

47. In my judgment PMI failed in its duty to RBH. It was obliged to take reasonable steps to see that WGI carried out the instructions which it gave on behalf of RBH. It was of course entitled to expect that WGI would have done more than convert the sketch into a drawing; it would have surveyed the site. (I am not concerned with whether WGI did or did not carry out a survey: that did not form part of RBH's main case.) The very fact that WGI had added dimensions should have brought it home to PMI that the site was bigger than the one shown on the previous drawing and that it contained a building. Mr Adams said in cross-examination:

Q. But, of course, if they did get the drawing, and if they looked at it, they would not have realised there was any discrepancy to what they had sent WGI?

A. No, but it should have dawned on them at that point that the site that the architect had drawn up was substantially bigger than the site they had been shown the previous day, that was bounded by fencing and contained a low rise office building.

48. Thus in my judgment in May 1986 PMI ought to have looked at drawing PW185 when it was received from WGI to see whether it correctly set out the area which was to be made available to the contractor. Mr Coleman also agreed that a project manager ought to have referred the drawing to RBH. PMI did not do so. Mr Coleman also agreed that a project manager ought not simply to file the drawing without reading it. Yet that is what PMI did. Had PMI done so then it ought to have seen that it did not show the correct area and it would probably have seen that discrepancy and acted on it by instructing WGI that the drawing was wrong. In addition in 1987 when PMI received TW's drawing P/01 it had another opportunity which it failed to take and thus to spot the error and to inform WGI.
49. As RBH no longer pursued a claim in respect of AI 27, RBH's case against WGI was that since WGI believed that Drawing PW185 accurately showed the area to be made available to TW, then on receiving TW's sketch P/01 on 16 February it ought to have compared it with the contract drawing in case TW had misinterpreted it and was, for example, proposing to use more land than was in fact available. Had WGI done so, it would have obvious both that there was a difference and that the area shown on the contract drawing was not being made available to TW. WGI should then have taken the question up with PMI. Had it done so any issue that might subsequently have arisen could and would have been resolved (as Mr Hutchings accepted). There are really only two issues on this claim: (1) Should WGI have compared TW's plan with the site plan? (2) If they should, then should they have done so before RBH entered a binding contract with TW?
50. As to the first, TW's sketch P/01 was sent to WGI, as Mr Hutchings said, "for information" but, given WGI's role, it cannot in my view be regarded as a piece of incidental information. PMI did not of course realise the true position so there was no reason to draw anything to WGI's attention or to wait for WGI's comments before giving TW possession. However from the point of view of WGI it was sent the sketch for a reason; Mr Hutchings did not have to be told. The reason was that responsibility for oversight of the contractor's operations was at that time a matter for the architect on a contract of this kind. No distinction can be made between the "site" where the permanent works would be erected and "operational land" where temporary works would be carried out. Both pieces of land had been provided by RBH. The works on each formed part of the Works under the contract. In my judgment there can be no doubt that it was the duty of Mr Hutchings (or some else within WGI on his direction) to take care to examine the contractor's proposals for the use of land set aside for temporary works, such as site offices and parking, and to take care to see that they complied with the requirements of the contract. WGI's duty was to take reasonable care to protect the interests of RBH which obviously included not being exposed to claims arising out of anything done or not done by TW for the purposes of the contract.
51. In my judgment if WGI had carried out that duty then it ought to have seen that TW was not using the whole of the site shown on drawing PW185 and asked itself (or PMI or even RBH): why? Had it done so the answer would have been obvious: TW had not yet appreciated that drawing PW185 gave it a greater area than it had supposed. Mr Hutchings accepted that had the two drawings been compared by him he would probably have seen the mistake. There was therefore the likelihood that if the contract proceeded without steps being taken TW would bring a claim for being deprived of the whole area.
52. The discrepancy was obvious so in my judgment WGI should have acted immediately, i.e. on or shortly after 16 February. The fact that the sketch was transmitted informally is immaterial. It was sent explicitly for the attention of Mr Hutchings, not to WGI as a firm. WGI as architect had to approve the proposal (as it later did for P/01A). WGI ought therefore to have brought the matter to the attention of PMI and, if necessary, RBH.
53. If either PMI or WGI had acted then the true position would have been revealed. I am sure that, for example, Mr Wragg would have gone directly to Mr Plant or Mr King and said that PW 185 was not correct. TW would then have been approached to agree the inclusion of a revision of PW 185 that truly set out the land available to TW. It is not right to suppose that people would have acted then as they acted later in different and much more constrained circumstances. In my judgment it would not only have been possible, but probable, that the necessary amendment could have been made to contract drawing PW185 and the contract either concluded with the revised drawing or varied by agreement. It is clear that at that stage TW was unaware of its position. It wanted the contract and had been negotiating to secure it within the funds available to RBH. It is not likely that it would then have sought more money either before or soon after the contract was concluded. It had been negotiating firmly but fairly and in my view it is inconceivable that a contractor of its standing and reputation would then have taken technical advantage. It would have been unable to demonstrate that it had tendered on the assumption that the whole site would be available.
54. It was suggested that RBH entered into a binding contract with TW at the meeting on 16 February. There is little direct evidence. Such as there is suggests strongly that the meeting was to agree on the price but not on the contract: see PMI's letter to RBH of 16 February 1987; TW's letter of the same date; and the letter from Mr Davies of the DHSS of 18 February 1987. The letter of intent had been issued to provide TW to proceed (as it did in due course by taking possession of the area reserved for offices and car parking and then of the site on 2 March 1987) and to give it financial cover until a formal contract was made. The effect of the meetings on 13 and 16 February was to clear the way to allow that formal contract to be prepared and signed. PMI in reporting the outcome to other consultants on 18 February 1987 said only that "instructions have been given [to TW] to proceed…" . In my judgment no contract (other than the conditional contract created by the letter of intent) then existed. Substituting a revision of PW185 to accord with the reality of the situation is just the type of change which routinely occurs before a formal contract is made. Similarly even if I were wrong in concluding that no contract was made I do not consider that it is at all likely that TW would have refused to agree to a variation of the contract so that it reflected the true position or would only have agreed in consideration of a further increase in the contract sum. At that stage TW could hardly have contended credibly that it had expected to get the blue land site when its actions were inconsistent with such an expectation.
55. Accordingly in my judgment PMI was in breach of its retainer with RBH for Mr Wragg failed in May 1986 to check drawing PW 185 when it was received from WGI, as a result of which the contract was concluded with a drawing which did not set out correctly the areas available to TW. Had PMI exercised reasonable skill and care the error would have been detected and the contract would either have been concluded on the correct basis or it would have been varied by agreement. If the probability of either is to be measured in terms of "loss of a chance" then in my judgment it is 90% for both. TW's claim against RBH was therefore a direct result of PMI's breach of duty. WGI's later failure does not affect PMI's liability since that is quite independent. It is not a new act which is the sole or primary cause of RBH's loss (as I discuss much later in this judgment in connexion with causation). Had WGI acted then obviously PMI's mistake would not have had any consequences.
56. In my judgment WGI was also in breach of its retainer. A prudent architect in the position of Mr Hutchings exercising reasonable skill and care ought to have checked TW's sketch P/01 to see that TW was using the area allocated. Had he (or some one else in WGI) done so it would have been obvious that TW was not using the whole of the site. Given that the areas were not small and congested the reason should have been found and RBH or PMI alerted to the need for a change which would have been made, as I have set out above. WGI's failure to act is therefore also causative of TW's claim for the same reasons that I have given in relation to PMI.
57. PMI's breach of duty occurred more than six years before the writ was issued on 21 January 1993 and so RBH's claim for breach of contract is barred by the Limitation Act 1980. Since RBH did not suffer any damage until the contract with TW was made, its claim in tort against PMI is not so barred because of the well known anomaly in the law. Thus PMI's defence based on limitation fails since the action was commenced in January 1993, less than six years since the conclusion of the contract. WGI's breach of duty occurred after January 1987 so RBH's claims against it are unaffected by limitation.

M & E Drawings

58. RBH's case under this head is principally against AA and is mainly to be found in paragraphs 50ff of the Re-amended Statement of Claim (RASC). They state (including parts of the case against WGI and PMI):

50. By reason of the terms of the WGI retainer set out in paragraphs 13.4.1, 13.4.3, 13.4.4, 13.4.6, 13.4.10, 13.4.11, 13.4.12 and 13.4.13 above WGI was under a duty to co-ordinate, direct programme and/or oversee the preparation of co-ordination drawings and provision of builders work information by Austen Associates.

51.

51.1 Further, by reason of the terms of the PMI retained set out in paragraph 9.6 (and in particular subparagraphs (e), (f), (g) and (m) thereof) above, PMI was under a duty to monitor, co-ordinate and/or oversee the preparation of co-ordination drawings and provision of builders work information by Austen Associates.

51.2 Further, by reason of the terms of the PMI retainer set out in paragraph 9.6 (and in particular subparagraphs (e), (f), (g) and (m) thereof) above, PMI was under a duty to monitor, co-ordinate and/or oversee the discharge by WGI of its duties set out in paragraph 50 above.

52.

52.1 In about the second week of February 1987 Austen Associates orally advised Brian Teale of PMI on behalf of the Board that Austen Associates had the bulk of design information ready for issue (following various amendments to the design to produce reductions in the contract price).

52.2 By a letter dated the 16^th February 1987 and/or orally at about the same time, PMI advised the Board of the advice given by Austen Associates set out in the preceding subparagraph and that the information needed by Taylor Woodrow was available and that there was no reason why Taylor Woodrow should be able to claim any delay by reason of late release of information.

52.3 Austen Associates and PMI gave the advice set out in the proceeding subparagraphs knowing that, as was in fact the case, the Board would rely upon it in agreeing to a start date of the 2^nd March 1987 for the main contract.

52.4 In fact, as set out below, Austen Associates was not in a position to provide Taylor Woodrow with co-ordinated mechanical and electrical drawings and/or the bulk of such drawing in about mid-February 1987 so that the bulk of design information was not ready for issue and/or the lack of preparation of such drawings was such that there was very reason why Taylor Woodrow would be able to claim delay by reason of late release of information.

53.

53.1 Hospitals, including the hospital, have a particularly large number of mechanical and electrical services.

53.2 In the hospital, the mechanical and electrical services were generally concentrated in the ceiling voids. In particular:

53.2.1 Domestic hot water flow, domestic hot water return, domestic cold water flow, medical gasses, steam, condensate, heating flow, heating return, mains water, pathology cold water service, laboratory drainage ventilation pipework, waste pipe work, natural gas pipework, cold room refrigeration pipework, pumped drainage pipework, rainwater pipework, soil pipework, drainage ventilation pipework, supply ventilation pipework, supply air-conditioning pipework, extract ductwork, fume and safety cabinet extract ductwork, electrical ladder racks, electrical trunkings and conduit runs.

53.2.2 Of the services listed in paragraph 53.2.1 above, the following had to be installed with a fall or gradient: domestic hot water flow, domestic hot water return, domestic cold water flow, steam, condensate, heating flow, heating return, mains water (if possible), pathology cold water service, waste pipework, pumped drainage pipework, rain water pipework, soil pipework and fume and safety cabinet extract ductwork.

53.2.3 Of the services listed in paragraph 53.2.1 above, the following had to be insulated: domestic hot water flow, domestic hot water return, domestic cold water flow, steam, condensate, heating flow, heating return, mains water, pathology cold water service, cold room refrigeration pipework, supply air-conditioning ductwork and some rainwater pipework.

53.3 In the premises, it was essential that great care was taken to co-ordinate the services in the hospital so as to avoid clashes.

54.

54.1 In 1987, Taylor Woodrow was programming the execution of its works by programme TWC/B364/B/P01/C, which provided for the start of the first fix of mechanical and electrical works to be carried out as shown in the second column in the table below. Austen Associates provided purported co-ordinated drawings on the dates shown in the third column in the table shown below:

Level	(1) Date first fix M&E due to start	(2) Date Austen Associates provided drawings	Interval between (1) and (2)
	5.10.87	14.8.87	8 weeks
	16.11.87	7 & 18.9.87	8-10 weeks
	4.1.88	20.10.87 and 6, 10 and 13.11.87	7-11 weeks
	8.2.88	23.11.87 and 6.1.88	5-10 weeks
	14.3.88	4 and 15.1.88	8-10 weeks
	25.4.88	15.1.88 and 8.2.88	11-14 weeks

54.2 The drawings provided by Austen Associates were indicative of Austen Associates' design intent, but did not show sufficient detail for installation purposes. In particular, they contained no sizes for pipework, ductwork or cables, no dimensional or ductwork locations were shown and they did not demonstrate that the service routes were practical or workable or that the services could be installed or maintained. The drawings did not show detailed sections at important areas, such as corridor intersections, electrical cupboards or service risers. They did not show final conduit routes to equipment or accessory positions. Moreover, there were numerous clashes, on and/or between those co-ordination drawings and they gave rise to numerous queries. As a result:

54.2.1 Taylor Woodrow and/or Taymech were delayed and disrupted in producing installation drawings and/or in carrying out the mechanical and electrical works both because of the need to engage additional drawing office resources and because of the tardy and piecemeal fashion in which usable installation drawings could be produced and then approved by Austen Associates;

54.2.2 Taylor Woodrow and/or Taymech were unable to produce installation drawings and order materials so as to comply with programme TWC/B364/B/P01/C;

54.2.3 It was not possible to carry out first fix mechanical and electrical works before the erection of internal blockwork walls (thus rendering it more difficult to carry out those works and requiring the production of builders work drawings by Taylor Woodrow and/or Taymech, which in turn required a diversion of and/or increase in resources); and

54.2.4 Taylor Woodrow lacked builders work information so as to enable it to produce builders work drawings so that appropriate holes could be left in slabs and/or internal blockwork walls."

The case against PMI and WGI is pleaded in paragraphs 62-64 of the RASC. In paragraph 17 of the RASC RBH set out the contractual provisions relied on. They are to be found in the annexe to this judgment.

59. Schedule 3 of the AA's Agreement contained some "Representations" made by AA in which it had "no reservations in accepting" (see paragraph 4). They included:

"2. The Consulting Engineers have on their permanent staff suitably qualified employees capable of undertaking the specific levels of work expected during all stages of the Project.

60. The Consulting Engineers note that:

a) All design and production drawings and specifications (as defined in DHSS Health Notices HN(67)7 and HN(78)6) are to be completed prior to tendering for the main contract.

b) Design work for mechanical and electrical services as well as for structural work should be carried out by relevant members of the Design Team and accordingly it is unlikely that any sub-contractors will be involved in any basis, or scheme design work; (should nominated sub-contractors be used the Employer intends that they would only perform a supply and installation service as opposed to design, supply and installation)."

HN(78)6 provided in the Supplementary Annexure:

1.1 The Consulting Engineer shall, if so requested by the Client, undertake responsibility for Co-ordination of Engineering Services designed by the Consulting Engineer and for the provision of Builders Work Information associated therewith.

61. 2 In fulfilment of this responsibility the Consulting Engineer shall:

(a) collaborate fully with other professional advisers appointed by the Client;

(b) collaborate with the appointed Architect, in the particular case of disposition of user outlets and environmental terminals, in accordance with procedures agreed by the Client provided that such procedures be neither more complex nor more comprehensive than those defined in Appendix B hereto;

(c) prepare Co-ordination Drawings and such other documentation as may be required in the opinion of the Consulting Engineer to fulfil his design responsibility;

(d) provide the Builders Work Information necessary in the opinion of the Consulting Engineer to enable detailed structural provision to be made by others for the engineering services designed by the Consulting Engineer."

Later it said also:

"7. Information to be Supplied to the Consulting Engineer

62. 1 The Client shall supply the Consulting Engineer, without charge and within a reasonable time, all necessary and relevant data and information in the possession of the Client and shall give such assistance as shall reasonably be required by the Consulting Engineer in the performance of services under this Supplementary Annexure.
63. 2 The Client shall arrange that the Consulting Engineer be supplied, without charge and within a reasonable time, with all architectural drawings to the appropriate scale as may be necessary for the preparation of the Consulting Engineers drawings and details co-ordinating Engineering Services and depicting Builders Work Information, where these are requested under Section 1 of this Supplementary Annexure.
64. 3 The Client shall represent to the Architect and other members of the design team the necessity for the completion of Co-ordination Drawings, Builders Work Information and other documentation, prior to the invitation to tender. To this end, at the programming stage of the design process, the Client shall inform the Architect that it will be for the Consulting Engineer to determine the period of time required after the final issue of architectural and other design drawings for the completion of Co-ordination Drawings and other documentation.
65. 4 The Client shall give his decision on all sketches, drawings, reports, recommendations, tender documents and other matters properly referred to him for decision by the Consulting Engineer in such reasonable time as not to delay or disrupt the performance by the Consulting Engineer of services requested by the Client under this Supplementary Annexure."

(I return to consider the meaning of these provisions.)

Clause 5.4 of the JCT conditions

66. Before turning to the facts it is necessary to look at clause 5.4 of the JCT conditions (which formed part of RBH's contract with TW). TW's case led to much discussion about it, both as to its application as between those parties and on its impact on the obligations of RBH's consultants. It provided:

"As and when from time to time may be necessary the Architect/Supervising Officer without charge to the Contractor shall provide him with 2 copies of such further drawings or details as are reasonably necessary either to explain and amplify the Contract Drawings or to enable the Contractor to carry out and complete the Works in accordance with the Conditions."

Earlier in these proceedings His Honour Judge Hicks QC considered this provision when in December 1999 he was asked to answer the following issue

"2(vi) subject to any defence relied on by AA arising out of the conduct of the parties, were AA obliged to provide co-ordination and builders' work information so as to ensure that the [claimant] complied with clause 5.4 of the main contract?

Or are AA's contentions at paragraph 39K(a) to (c) of AA's Amended Defence correct?

Judge Hicks gave an affirmative answer to the first sentence of the issue, subject to certain qualifications, clarifications and explanations, and a negative answer to the second sentence (see paragraph 39 of his judgment [2000] BLR 75 at page 80). In paragraph 27 of the judgment he said:

"The purpose for which the co-ordination drawings were required was to enable the contractor to carry out the M&E works in accordance with his contract, and in particular to prepare his installation drawings, and the temporal requirements on AA must serve that purpose. AA was therefore obliged to use reasonable skill, care and diligence to ensure that the co-ordination drawings were provided in time to enable the contractor to prepare installation drawings and thus to carry out and complete the works in accordance with the contract programme; indeed, as recorded in paragraph 11 above, my understanding was that Mr Bartlett eventually accepted that that was so. …"

The arguments before me overlapped those presented to Judge Hicks but essentially concerned what might be meant by "on time" and whether RBH was liable to TW for non-compliance with clause 5.4 and what that might mean. Mr Bartlett for AA submitted that there was reason for the apparent contrast between the opening words of clause 5.4 concerning timing ("as and when from time to time may be necessary") and the subsequent words concerning the nature of the information ("such further drawings or details as are reasonably necessary"). He contended that the test of necessity regarding timing was not qualified by "reasonably" and that this showed that under this clause the Employer was only obliged to provide the information at the latest possible time and that the contractor was not entitled to insist on having the information any earlier than was strictly necessary. He maintained that what was "necessary" and "from time to time" depended upon the contractor's actual state of progress. If the contractor had not reached the position where it was ready to make use of the information, it was not at that time necessary to what it was doing. This submission seems to me both to encapsulate one of the divisions between the parties and not to recognise reality. For example, the reason why "as and when from time to time may be necessary" is not qualified by "reasonably" is not so that the test of necessity should be stricter than that required by "such further drawings or details as are reasonably necessary" but because of the need for certainty. The latitude given by the later words is inappropriate.

67. The following broad questions arise (amongst others): (1) by what time ought a consultant to have provided information to the contractor that complied with clause 5.4; (2) by what time was the contractor entitled to the information; and (3) in what circumstances might a contractor be compensated if he suffered loss or damage as a result of not having the information on time? (They will not be considered in that order.) It should be noted that I am not concerned with whether the co-ordination drawings were "reasonably necessary". That is admitted. It will also be relevant that co-ordination drawings have a long lead time. The contractor needs them well in advance of any installation date since for example, they may not show an installation sequence which would facilitate procurement or mobilisation so standard periods have to be assumed.
68. The answers to these questions do not depend on clause 5.4 alone. The contract has to be read as a whole. Clause 25 of the JCT conditions as incorporated in the contract between TW and RBH provides for an extension of time to be granted for various Relevant Events, one of which is

"25.4.6. the Contractor not having received in due time necessary instructions, drawings, details or levels from the Architect/Supervising Officer for which he specifically applied in writing provided that such application was made on a date which having regard to the Completion Date was neither unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive the same;"

Clause 26 entitles the contractor to recover loss and expense in the event of:

"26.2.1. the Contractor not having received in due time necessary instructions, drawings, details or levels from the Architect/Supervising Officer for which he specifically applied in writing provided that such application was made on a date which having regard to the Completion Date was either unreasonably distant from nor unreasonably close to the date on which it was necessary for him to receive the same."

Both provisions thus make entitlement dependent on a specific written application having been given for the information which arrived late. In addition both provisions require the contractor to give a notice (clause 25.1) or to make an application (clause 26.1) before the Architect is obliged to consider whether to grant an extension of time or to form an opinion about whether the contractor was to be able to recover any loss expense that might have been incurred. (I deal later with the relationship between clause 5.4 and these provisions.)

69. In addition, as Mr Williamson for PMI rightly submitted, the obligation or obligations in clause 5.4 cannot be viewed in isolation. TW had obligations under its contract with RBH. Clause 5.4 was immediately preceded by clause 5.3.1.2:

"5.3.1. So soon as possible after the execution of this Contract:

…..

.1 .2 "the Contractor without charge to the Employer shall provide the Architect/Supervising Officer (unless he shall have been previously so provided) with 2 copies of his master programme for the execution of the Works …".

Clause 1/22C of the Specification said:

"MASTER PROGRAMME – within fourteen days of acceptance of tender or as a result of a decision by the Architect under Clause 25.3.1 or 33.1.3 of the Conditions of Contract the Contractor shall provide for and in a form approved by the Architect a fully detailed master programme of the whole of the Works including a network analysis substantiating the programme contents. The programme shall comprehensively cover all aspects of and matters relating to the execution of the Works including indicating dates or periods for the issue of instructions or information necessary for the execution of the Works … ."

The programme shall comprehensively cover all aspects of and matters relating to the execution of the Works…"

Clause B1:03:08 of the M&E Specification provided for the programming of the production of installation drawings:

"The Contractor shall submit installation drawings of the whole of the works to the Engineer for consideration at a reasonable time before work is commenced.

A program for the production of this information shall be submitted at the pre-Contract meeting and dates agreed with the engineer.

Give due consideration to detailed co-ordination drawings where provided with the specification. No deviation from the positions indicated on the Engineer".

Clause B1:03 18 (Co-ordination of Working Drawings) also contained the following:

"The Contractor must produce all necessary working drawings for Architect/Engineers approval and shall allow 10 working days from submission the drawings for approval. All drawings must be produced in sufficient time to comply with all agreed programmes. Working drawings shall be similarly submitted for all purpose manufactured plant and materials."

Thus Mr Williamson contended that the obligation under clause 5.4 to supply information "as and when from time to time may be necessary…" meant "as and when from time to time may be necessary in all the circumstances" and such circumstances included the extent to which the contractor has performed his own programming and information request obligations; the dates by which information needs to be supplied to enable the programme to be achieved; the contractor's state of preparation "on the ground"; the contractor's actual progress. Mr Williamson also made the point (reinforced by the specifications) that even under 5.4 standing alone, a contractor is not expected to sit back and wait for information (and then to make a claim if the information is not forthcoming). In Mr Williamson's language: "In the real world, the process of obtaining and supplying information is an interactive and iterative one. The Contractor will be in the best position to know what information he needs, and, generally, will not be shy to ask for it." Similar arguments were advanced on behalf of AA – see later.

70. I digress slightly to dispose of any argument based on clause 2.2.1 of the JCT conditions to which I have already referred. That says:

"Nothing contained in the Contract Bills shall override or modify the application or interpretation of that which is contained in the Articles of Agreement, the Conditions or the Appendix."

A standard form is supposed to be just that. It loses its value if those using it or, at tender stage those intending to use it, have to look outside it for deviations from the standard. On the other hand, it causes problems since the Contract Bills (being based on the Contract Drawings) are the appropriate place to set out specific requirements for the project. Clause 2.2.1 gives effect to that approach in part by requiring the contractor to "carry out and complete the Works shown upon the Contract Drawings and described by or referred to in the Contract Bills …", but it does not of course meet the difficulty that the Bills are in reality much more representative of the parties' intentions than the standard form JCT conditions. . The conventional way out of some of the problems is to read "the Works" widely as encompassing not just the work called for by the Drawings and Bills but the means of doing so which would in this instance include the provision of programmes. Thus clause 5.4 would have to be read together with such provisions. Since "necessary" and "reasonably necessary" are not defined and, indeed, should not be defined in the abstract without reference to their contractual context, it is my view clear that the provisions of the Bills are directly and intended to be relevant to the time when it would be necessary for information to be provided to TW by WGI or by other consultants via, notionally perhaps, WGI. I therefore accept Mr Williamson's submission that these provisions of the Bills supplement the Conditions, as suggested in Keating on Building Contracts, 7th Ed., paragraph 18-44 (see also Moody v Ellis (1983) 26 BLR 39). It is therefore permissible to look at them, but the meanings to be given in practice to the words "necessary" and "reasonably necessary" have to take account of the implementation of the provisions of the Bills and the M&E Specification. Similarly the potential difference between the opening of clause 5.3.1.2 ("so soon as is possible") and clause 1/22C of the Bills ("within fourteen days") should be reconciled by using the Bills to define what is otherwise undefined.

71. Mr Williamson extended his argument to the proposition that TW could not claim damages for breach of clause 5.4 if it had been in breach of its obligations to provide and maintain programmes (as it was). In my judgment this is too sweeping a proposition and is tantamount to the provisions of the Bills not just supplementing but dominating clause 5.4 of the conditions, and, as such, conflicts with the otherwise clear wording of clause 2.2.1. If TW had not complied with its obligations as to the provision of programmes then it may not have established the time when it was necessary to have the drawings or details. To that extent only Mr Williamson's oblique reference to Roberts v Bury Commissioners (1870) L.R. 5 C.P. 310 and to some implied obligation to co-operate in the sense of not hindering or preventing performance has some relevance. There will be some occasions when the architect will have to be told when or what information is needed, usually the latter. Nevertheless the basic premise is that the contractor by promising to carry out and complete the works generally warrants that he can do so and is competent to do so. Clause 5.4 is not intended to spoon feed a contractor who is to be assumed to be capable of completing the Works shown on the Drawings and described in the Bills. The words in clause 5.4 "to enable the Contractor to carry out and complete the Works" refer only to where a competent contractor cannot with certainty decide what is required without further drawings or details. I do not accept PMI's case that the programming obligations set out above provide the sole yardstick by which temporal compliance with clause 5.4 is to be measured. A contractor might write a letter to establish the time for compliance with clause 5.4; there might be a site meeting minute which would suffice; in my experience a note on a drawing has been enough. I return to clause 5.4.
72. First, Mr Edwards-Stuart for RBH submitted that by itself clause 5.4 did not require any notice by the contractor before the employer became under an obligation to provide the necessary information in time. Thus if drawings or other information was not provided the contractor could recover loss and expense under clause 26.2.1 if it had made a valid application under that clause (although, as provided by clause 26.6 this would be without prejudice to any other remedy); it could claim an extension of time under clause 25.4.6 (subject to a valid application); or it could claim damages. For the latter option Mr Edwards-Stuart referred to Keating on Building Contracts, 7th ed, page 633.
73. AA contended that clause 5.4 had to be read with clauses 25 and 26, and in particular the provisions to which I have referred, and that the contractor had no rights in the event of non-compliance with clause 5.4 except as set out in and subject to clauses 25 and 26. Mr Bartlett submitted that an interpretation of the JCT contract which in practice drove a significant wedge between circumstances amounting to breach of clause 5.4 and circumstances amounting to a relevant event under clause 25 or giving rise to entitlement to loss and expense under 26 would undermine the effectiveness and overall scheme of the contract. He maintained that unless breach of clause 5.4 did not qualify as a relevant event under clause 25, then such breach would make time at large and would disentitle the employer to any possibility of liquidated damages. In addition Mr Bartlett relied on general principles, notably the familiar obligation to not impede or prevent, as set out in McCarrick v Liverpool Corporation [1946] 2 All ER 646 at page 651 per Lord Uthwatt (following Lord Blackburn in Mackay v Dick (1881) 6 App Cas 251 at page 263) where it was said:

"... in any contract, whatever its nature, it is a general rule that, if the thing agreed to be done cannot effectually be done unless both parties concur in it, the proper construction of the contract requires the implication of a term that each agrees to do all that is necessary to be done on his part for the carrying out of that thing"

Mr Bartlett observed that the principle had been applied to the JCT conditions as it had been held that close co-operation was required between employer and contractor: London Borough of Merton v Stanley Hugh Leach Ltd (1985) 32 BLR 51 at 80-81 per Vinelott J. The obligation in clause 5.4 should be one which the employer could reasonably fulfil. Mr Bartlett referred to Neodox Ltd v Borough of Swinton and Pendlebury (1958) 5 BLR 34 at page 42 where, in relation to an implied term, Diplock J stated that the time for provision of information did not depend solely upon the convenience and financial interests of the contractor, but also upon the point of view of the architect, his staff, and the employer. Those observations deal with requests that are either premature or made late and cause inconvenience. Mr Bartlett accepted that the contract with TW sought to avoid the familiar problem of a contractor asking for information earlier than it was reasonably required in order to prepare the ground for a future claim (also noted in the report of AA's expert, Mr Miers). However it tends to be forgotten that such requests are quite often prudent in order to make the person providing the information aware of the need for it and, in any event, the mere making of the request may establish little. What has to be established is the date when the information was actually needed, its absence on that date and the consequences of its absence in terms of time or money (probably both). The Court of Appeal rejected AA's earlier case. Aldous LJ said:

"79. Mr Bartlett placed the blame upon Brompton for the way that the judge dealt with the timing claim independently from the quality claim. He went on to submit that the findings of fact were conclusive on the issue. I do not agree. I believe that Mr Edwards-Stuart is correct in his submission that clause 5.4 is a term which must be construed as imposing an obligation to provide the drawings when necessary in the sense that the drawings must be provided when actually necessary as opposed to when they were perceived to be necessary. No doubt in most cases the perceived need of a contractor will coincide with actual need, but this may not be such a case. ..."

74. In this contract the provisions of the Bills and of the M&E specification to which I have referred make it clear that the co-ordination drawings were to be provided to the contractor in accordance with whatever might be agreed at the pre-contract meeting and thereafter in accordance with the master programme. Those arrangements would ordinarily meet the requirements of clause 5.4 in establishing what was "necessary" and "reasonably necessary" and, if the information did not appear until late, TW would be able to rely on them as specific applications for the purposes of clauses 25 and 26. Even discounting the possible effect of clause 2.2.1 these provisions did not purport to deal comprehensively with clause 5.4 as it applied to co-ordination drawings, nor was it likely that operational arrangements of this kind were intended to have any such contractual effect. So Mr Williamson's arguments based on Roberts would fail.
75. It is necessary for the contractor to have the drawings a certain number of weeks before starting the relevant part of the installation. The relevant start date is that on the contractor's current programme, adjusted as appropriate for any delays that have occurred in the meantime that will result in the date being put back. The contractor's own expectation of the amount of time required is a relevant factor to be taken into account when determining the necessary period, but it is not decisive. For example, as the decision of the Court of Appeal establishes, the mere fact that a contractor requests information for a particular date does not make that date the date by which the information should have been provided. It is, on the other hand, evidence that the contractor did not require it earlier than that date. Equally, the contractor may have been led to think that the drawings will be of such a quality that he will be almost able to build straight off them and so leave himself relatively little time for preparing his own drawings. That will also be a material factor. Any question of timing may not therefore be divorced from that of the quality of the drawings and vice versa. On the other hand, the contractor may have little confidence in the architect or the engineer, and has to plan for the worst. The architect's or engineer's obligations to provide drawings in time can therefore be determined by the subjective understanding of the contractor – hence the desirability of making specific applications or notices as required, for example by clause 26.2.1 so as to establish what might otherwise have been appreciated by the consultant. Furthermore the period required by a contractor, after receipt of co-ordination drawings, for preparation of installation drawings and for site mobilisation depends on many factors within his own control, including in particular (a) the quantity and quality of drawing resources and (b) the planned relationship between the drawing period and the mobilisation period. In this instance it is material that clause B1:03:08 of the M&E specification provided that TW had to "Give due consideration to detailed co-ordination drawings where provided with the specification." and "No deviation from the positions indicated on the Engineer". Thus RBH submitted, correctly, that TW could reasonably wait until it had AA's drawings before starting on its own drawing programme – a point accepted by AA). Accordingly the times required by the contractor may be earlier than the consultant may have expected. The Employer is nevertheless bound to comply with them, unless they are quite unreasonable i.e. not based on the contractor's real requirements. Hence the prudent employer requires advance notice by way of pre-contract notification and thorough programming, as found in TW's contract with RBH. As the contract proceeds what is "necessary" "from time to time" may depend upon the contractor's actual state of progress. But the test is not whether the contractor has reached the position where it is ready to make use of the information, or whether it is at that time necessary to what the contractor is doing, for either would be to defer it to the latest possible date and the contractor could not be sure that it would arrive. Under clause 5.4 the contractor has to have the information earlier than he may in fact be able to use it. Obviously, if the information arrives later, but still earlier than the time when the contractor actually needs it, there will be no consequences either in terms of breach of contract or delay or disruption (still less potential delay) qualifying for consideration under clauses 25 or 26.
76. I also do not accept AA's case that the Employer can avoid its responsibilities under clause 5.4 by relying on the absence of an application or notice from the contractor although that may be in fact a material factor in determining the temporal necessity for the information (or whether it was reasonably necessary for the contractor to have that information, i.e. that it was needed to explain or amplify the Contract Drawings or to enable the contractor to carry out and complete the Works). First, there is no such limitation in clause 5.4. The JCT Conditions are not notable for brevity: indeed the purposes of the repetition of refrains and of seeming prolixity are to ensure that those who actually use the form do not have to be lawyers and do not have to embark on processes of interpretation and cross-referencing where none is indicated. If therefore it had been intended that the explicit and clear requirements in clauses 25 and 26 were to condition clause 5.4 it would have been made plain. Secondly, clause 26.6 is very clear:

"26.6 Reservation of rights and remedies of Contractor

The provisions of clause 26 are without prejudice to any other rights and remedies which the Contractor may possess."

In my judgment that means that, whatever the rights the Contractor may (or may not) have under clause 26, if any of the circumstances described in clause 26 as entitling the Contractor to apply for the reimbursement of loss and expense occasioned by it is also a breach of contract by the Employer then it remains actionable by the Contractor. That was the view of Vinelott J in London Borough of Merton v Leach (see 32 BLR 51 at page 108) in relation to the comparable provisions of the 1963 edition of the JCT form and, so far as I am aware, it has stood unchallenged. It has been accepted as correct by the leading commentators (see Hudson, 11th ed. at paragraph 8-070 and Keating 7th ed. at paragraphs 18-82, 18-318, 18-341) and it has been followed (see Fairclough v Vale of Bevoir Superstore (1990) 56 BLR 75). Mr Williamson did not argue to the contrary. I therefore accept the submissions of Mr Edwards-Stuart and reject those for AA.

77. Thirdly, non-compliance with clause 5.4, which delayed completion and which rendered the contractor liable to liquidated damages would not make time at large. That proposition assumes, incorrectly, that the liquidated damages payable under clause 24 is a penalty from which the contractor may seek relief. That is a dated view of liquidated damages provisions in construction contracts. The modern and better view treats the provisions as the agreed measure of the damages payable (see Keating, 7th ed at paragraphs 9-10 - 9-12, 9-26). Although the figure may have been inserted by the Employer it is priced for and accepted by the contractor as the limit of its liability. Hence, even if the provision becomes inoperative, the employer cannot recover more than the amount that would have been recoverable had the clause operated. Clause 25 and the list of Relevant Events provide an apparently comprehensive code whereby time may or may not be extended for all the common types of occurrence (and many rare events). Late information, in other words, non-compliance with clause 5.4 is, after variations, probably the most common cause of delay. Lack of proper pre-planning has been (and remains) the bane of construction contracts, mainly where there has been competitive tendering and where the fees payable to consultants are not conducive to getting information out on time, whether for pre- or post-contract purposes. In order to remind the contractor of the need to establish the circumstances which justify the time or money sought, both clauses 25 and 26 require proof of the necessity for the late information, whether in terms or time or content, by way of a specific application or notice. That does not affect the contractor under clause 26 since its absence does not prevent a claim for damages for breach of contract. The contractor is similarly not prejudiced in relation to an extension of time since the architect is obliged to consider whether or not to grant an extension of time once he becomes aware of any Relevant Event. This was also established by the judgment of Vinelott J in London Borough of Merton v Leach – see 32 BLR 97-98 and 104. Before issuing a certificate that the contractor has failed to complete the works by the completion date, as provided by clause 24.1, the architect has to consider whether it should be issued. In doing so the architect has thus to consider any grounds which might excuse the contractor for failing to complete the works by the completion date. Thus the architect will carry out the same exercise as that required under clause 25.3.3. Clause 25.3.3.1 requires the architect to fix a completion date which is "fair and reasonable having regard to any of the Relevant Events, whether upon reviewing a previous decision or otherwise and whether or not the Relevant Event has been specifically notified by the contractor under clause 25.2.1.1" [my emphasis]. The JCT conditions do not make the issue of a certificate under clause 24.1 dependent upon the grant of any extension of time (or refusal to do so) under clause 25 so in law there is no connection even though in practice the same ground will be covered. Once the contractor has given notice under clause 25.2.1.1 the architect is obliged to consider the circumstances (and may also have been obliged to do so if he became aware of them earlier) even if no specific application had been made as provided for by clause 25.4.6.
78. For present purposes, the more important question, in my view, is the date by which the architect or consultant is obliged under the contract with the client to provide the information. In my judgment, as I have indicated, that date cannot be the date by which it turns out that the contractor actually needed the information. A target is not to be determined ex post facto. That is to confuse whether the employer can prove any loss resulting from the breach of duty with the duty itself. Obviously if clause 5.4 is fulfilled then a duty based upon its fulfilment will necessarily be discharged to the extent the contractor has made no claim against the employer so the employer should not be liable to the contractor and thus should have no complaint against the consultant responsible. The duty is primarily contractual and, although its breach may also give rise to an action in negligence, the employer's architect or consultant has to provide the information by the date when it is expected. That date will depend on a number of factors. The terms of the construction contract will be one of them but in the pre-contract period the duty will have to be framed by reference to what is likely to happen. Once the contract is made, the discharge of the duty may then be refined by the production of programmes by the contractor or other yardsticks by which the performance of the architect or consultant may be measured, all the more so if the dates are agreed (as envisaged by the Bills and Specification in this contract). If the programmes are not met then the consultant may no longer be obliged to provide the information by the programmed date, although, as I have said, it would be misleading to equate the consultant's obligations with the employer's obligations under a provision such as clause 5.4. Thus, for example, it was pointed out by Vinelott J in London Borough of Merton v Leach (32 BLR at page 88) that the date when otherwise information might be required may be postponed if the contractor falls behind his programme. It does not necessarily follow that the consultant is thereby relieved of the duty, but, as already stated, it may mean there will be no consequences to the client if the information does not arrive at a time when the contractor is not in a position to make use of it. Thus RBH's case stems from liability to TW for non-compliance with clause 5.4 and TW's claim. The client has a distinct interest in avoiding not only claims but the possibility of claims and in my judgment there is ample justification for requiring the consultant to comply with its original obligations if to do so would prevent the contractor claiming. Thus under clause 23.1 of the JCT conditions the contractor has a distinct obligation to proceed "regularly and diligently" and the employer is under a corresponding obligation not to hinder or prevent that obligation – the references to Roberts made by Mr Edwards-Stuart and Mr Williamson are apposite here, as is Mr Bartlett's citation from McCarrick. In Roberts Kelly CB and Blackburn and Mellor JJ said (at page 326) that:

"a principle well established at common law, that no one can take advantage of the non-fulfilment of a condition, the performance of which has been hindered by himself… and also that he cannot sue for a breach of contract occasioned by his own breach of contract, so that any damages he would otherwise have been entitled to for the breach of contract to him would immediately be recoverable back as damages arising from his own breach of contract."

79. The timing of further information required under clause 5.4, like the release of information generally, must not disrupt the contractor's progress even if it does not lead to delay in completion for otherwise there may be liability under clause 26. In practice therefore that may mean that the consultant will be obliged under the contract with the client to produce information before the time when the contractor can make use of it. The contractor will however then know that it exists and will be able to plan to catch up with confidence. The word "necessary" in the first part of clause 5.4 is not limited to providing the information "just in time" nor is it to be measured by reference to whether the contractor suffers critical delay to planned completion. Delay to completion, and, perhaps even more important in practice, disruption to progress may therefore be minimised or averted, especially if the delay in progress is the contractor's responsibility. That is in the interests of the client and the contractor and their avoidance is a proper objective for the consultant. Unless the client agrees the terms of the construction contract and the performance of the contractor cannot in law modify the terms of the consultant's contract. Provisions such as clause 5.4 are not to be used to diminish the terms or effect of the consultant's contract.

Background to M&E Drawings Issues

80. AA placed emphasis on what had taken place before 1987 when the question of whether or not in 1987 and 1988 it performed its duties came to be considered. Its performance should be judged against the previous history of the project. In my view there is for this purpose little difference between the parties. In addition, as will be seen, the background to the events with which I am concerned was not thought by AA to be decisively material in 1987 and 1988. The events are however relevant to the first of RBH's complaints.
81. The DHSS had its Capital Procedures Code (the Capricode) which were not followed in that AA's co-ordination drawings had not been prepared when the project was put out to tender in mid 1986. Thus in November 1999 one of the proposed preliminary issues was resolved as follows:

"Issue 2(e): Paragraph 19A (a), (b) and (c) of AA's Defence: Were the Board and/or PMI under any pleaded duty to comply with the provisions of Capricode?

"17. With reference to paragraph 19A of AA's Amended Defence, it is agreed between Brompton and AA that the correct position is as follows:

(a) As between the Board and the DHSS, the project was required to be conducted in accordance with the provisions of Capricode, as in force from time to time, save as otherwise specially agreed between the DHSS and the Board.

(b) As between AA and the Board, the Board could not agree a departure from the provisions of Capricode which conflicted with the terms of AA's retainer.

(c) The fact that at the time of AA's retainer the Board was required to comply with the provisions of Capricode (in the form then in force) was part of the factual matrix against which the duties and rights of the Board and AA should be construed.

(d) AA's duties under their retainer were formulated with express reference to Capricode's stages.

(e) Any failure by the Board to comply with the guidance in Capricode might excuse late production of drawings or other information by AA. Whether any such failure did give rise to such excuse would depend upon the particular circumstances.

(f) Breach by the Board of the provisions of Capricode would not, of itself, necessarily amount to a breach of contract by the Board as regards AA. Whether a breach of the provisions of Capricode would result in a breach of some obligation owed by the Board to AA would depend upon the particular circumstances.

(It is further agreed that the last sentence of paragraph 19C(d) shall be revised to read: "What was a reasonable time falls to be determined by reference (amongst other things) to the terms of AA's appointment and the provisions of Capricode").

82. When AA first became involved in the project in September 1981, it had already been on foot for 14 years. RBH understandably wished to go faster. Nevertheless it took a further three years for the official go-ahead to be given. In 1984 WGI issued programmes which set out what was expected of each member of the Design Team and of the client and the periods required (as contemplated by Capricode). It envisaged that the client would provide final equipment and room data information by 15 October 1984 and that the final scheme design would be frozen by 4 March 1985. The Design Team would then prepare the detailed design so that all the information necessary for the preparation of the Bills of Quantities would reach NNN by 18 November 1985. Thereafter AA would by 24 March 1986 prepare and complete the services co-ordination information. Tenders were to be invited on 31 March 1986.
83. However the plan changed. The final scheme design was not frozen. In April 1985 WGI asked that the room layouts be regarded as frozen as 26 April 1985 at which time further revisions were being considered by RBH. In July 1985 WGI issued programme M6 which allowed AA 16 weeks for co-ordination drawings (activity 113). Tenders were to be sought on 5 May 1986.
84. PMI became the Project Manager in July 1985. It was then apparent that the project would go over budget and there was naturally concern about whether it was feasible. In September 1985 AA was told by PMI to slow down on design work and to carry out a cost estimate to compare with the NNN's figures. It was part of AA's case that it was also told by PMI to "shut up" and stop "rocking the boat". That was probably true but it took place a long time before 1987.
85. On 16 September 1985 PMI issued a "Preliminary Overall Development Programme". Contrary to Capricode and to the sequence in AA's retainer (see for example para 7.3 of the Supplementary Annexure) this programme envisaged AA preparing the co-ordination drawings after the building services had gone out to tender (by a nominated sub-contractor). AA set out its reservations about this proposal after the meeting at which it was discussed, i.e. in a letter of 4 October 1985. None of AA's requirements in that letter was met. However AA went along with the change and did not insist upon participating in drawing up the programme so as to determine the period required for co-ordination drawings after the final issue of architectural drawings. Moreover the project was not frozen. AA asked when this would be in its letters of 16 and 17 October 1985, in which it pointed out its difficulties under various heads (only some of which are relevant): pathology; the kitchen; water storage tanks and pump rooms; waste disposal; and changes or amendments to architectural layouts.
86. At a meeting on 23 October the M&E services were estimated to be £1.4m over budget as estimated by both NNN and AA. Both AA and WGI said trying to make cost savings would seriously affect the programme. PMI recognised the need for a design freeze. In a report to RBH it said:

"It is essential that the design is frozen as at the 1^st November 1985 and a total design freeze following the display of the final presentation."

However PMI allowed RBH some latitude:

"All changes after this date may be proposed and these will be reviewed. Decisions will be taken on whether items may be incorporated prior to commencement of the contract or on practical completion. The Project Manager will have the responsibility to discuss the changes with the design team and report to the Project Co-ordinator with the effect on cost and programme and with recommendations on how the change should be actioned."

There can be no doubt that the evolution of the project in this way required consultants to work inefficiently, although since few, if any, major hospital projects at that time ran entirely smoothly it does not follow that the consultants had not anticipated such problems and had not taken them into account in arriving at their fees or internal budgets. Of immediate consequence was the effect on the performance by the consultants of their duties. Again there can be no doubt that such circumstances should be considered in deciding whether a consultant exercised reasonable skill and care in producing a drawing or other information on time It is common sense. Counsel for AA submitted that consultants do not then have a duty to apply unlimited resources to a job so as to do everything as quickly and effectively as the client would like. I basically agree, although the qualification should be: as quickly and effectively as required by the contract of engagement.

87. On 17 December 1985 WGI pointed out that the number of changes that RBH wanted to make could not be handled without affecting progress. I am sure that RBH knew of such difficulties but its interests naturally required the Design Team to look into proposed changes as quickly as possible. In so far as it is material I do not accept that RBH was overriding the advice given to it. Having considered the evidence of Mr Plant and Mr King I am satisfied that RBH was well aware of the need not to create circumstances in which any consultant would not do its job properly. That would not have been in RBH's interest.
88. At that time Mr Teale, in conjunction with Mr David Woolven, (who was PMI's senior planner responsible for all network planning and information flow), produced schedules and programmes to assist in the monitoring of the flow of the information from the Design Team. Mr Woolven was available to Mr Teale throughout. This seemed to have worked well. A Preliminary Overall Design Programme was produced by PMI dated 16 September 1985 after consultation with the other Members of the design team. The Project Manager's Report No 1 of October 1985 declared at its 'Introduction' that part of the aim of the report (on changes to organisation) was to ensure a smooth pre contract run up and it recorded that AA's M&E drawings were 50% and 25% complete respectively. PMI wrote to WGI on 1 November 1985 requesting that after the Architect's Design Meeting PMI hold a programme meeting to finalise and agree the draft pre tender programmes "as issued to date". On 7 November 1985 PMI wrote to WGI enclosing a revised programme of information release which included comment from each consultant. The letter also requested each consultant to produce a 'Production Drawing Schedule' confirming the dates for the preparation of drawings within the release of Design Information Programme SP /1a prepared by PMI. All the other consultants were copied in on this note. The notes of Policy Meeting No 1 dated 22 November 1985 at item 3.0 Programme record that a revised programme had been issued following discussion with the consultant team; that the other consultants were asked to confirm the dates for release of information. PMI wrote to AA on Christmas Eve 1985 expressing concern about progress and delays noted in AA's production of drawings and requiring that essential steps should be taken to achieve the target dates for billing. (PMI's programme SP/1B/3 was used to illustrate the problem.)
89. The notes of Policy Meeting No 3 dated 7 February 1986, attended by Mr King and Mr Lee of the Hospital, record that AA's drawing programme was 2 to 4 weeks late on the PMI programme that had been agreed. It was noted that AA had increased numbers working on the project. The notes of the next Policy Meeting (No 4) in March showed a slippage of 4 weeks. (I am not here concerned with the reasons why AA was late or whether it was late.) The documents indicate that PMI was managing the project by keeping track of AA's progress by the use of its programmes.
90. AA drew attention to the fact that in 1986 both it and WGI declined to provide certificates of readiness. RBH recognised this point and proposed to indemnify the consultants against any liability arising from the provision of incorrect certificates. However modified certificates were devised. (In 1987 there were further deviations from the norm in producing the next round of certificates – see later.) On 22 July 1986 AA provided a certificate to the effect that the engineering services had been carefully designed and would "meet the design intent and provide satisfactory environmental conditions, proper access for maintenance purposes and safe operation" if installed as designed. The certificate therefore only covered the work done to that date. Everybody knew that further design drawings had to be done. The witness statement of Mr Robert Edwards listed changes made in 1986 that he considered material and they were summarised in the report of Mr Stephen Edwards. They included: re-planning of level 1 mortuary; re-planning the kitchen to include a cook/chill system; re-planning the pathology department; in-filling of the level 1 courtyard and re-location of the staff changing area; re-planning the level 2 entrance foyer, lecture theatre and seminar rooms (level 3); re-planning the hospital sterilisation and disinfection unit (HSDU); providing showers in private bedroom bathrooms; numerous equipment changes affecting engineering designs. (However Mr Mackenzie accepted that the changes to the kitchen, mortuary, in-filling the courtyard, the main entrance, level 2 entrance, the lecture theatre, etc on level 3 including the PICU had no significant effect on the production of the co-ordination drawings during 1987.).
91. Mr Robert Edwards also said that AA produced about 550 single service drawings for the original Bill of Quantities and about 110 for the Addendum Bill of Quantities. Obviously the co-ordination drawings could not be completed until the additional single service drawings were ready. However it must not be forgotten that to a contractor the single service drawings are initially the most important as they are used for planning for negotiating sub-contracts and generally to get the work going. (It had been agreed earlier in the year that NNN should prepare Addendum Bills, and the tenderers would have to read the main bills as amended by the Addendum Bills.) Nevertheless, the Addendum Bills were themselves also out of date by the time they were issued, changes continued to be made during the summer of 1986. On RBH's behalf PMI proposed a meeting two days before tenders went out to discuss continuing and further changes. The fluid state of the project in mid-1986 may be seen from PMI's letter of 22 August 1986 to WGI , in which PMI proposed to reconvene meetings to progress the final stages of design in relation to a number of matters, including M&E co-ordination drawings, as well as the HSDU Area, pathology, drainage requirements etc.
92. On the other hand AA made some points arising out of RBH's own Certificate of Readiness which I shall assume was issued (although no copy was provided by it) as it was apparently enclosed by Mr King with his letter of 28 August 1986. As its form was prescribed AA said that it would have read as follows:

"1. The Authority is satisfied that this scheme has been prepared in accordance with Capricode procedures and that all reasonable steps have been taken to ensure that once a contract is let the scheme should be able to proceed to completion without delay. In particular the Authority is satisfied that the Design Brief was frozen at the appropriate stage and will not be altered during the course of the contract other than in exceptional circumstances, the scheme has been designed within budget, and there are no causes of delay currently foreseeable.

93. Tender documentation etc. is consistent with, and fully reflects, the general production information to be provided to the Contractor. There is a feasible programme for the supply of any production material not available at tender stage, and the Authority has taken account of these factors in its assessment of the degree of readiness of the scheme.
94. The Authority has been assured by the Design Team and is satisfied that to the best of its knowledge and belief the design complies generally with The Building Regulations, and with Codes of Practice including Health Service Fire Standards and British Standards Specifications where appropriate. Appropriate Design Certificates have been obtained.
95. Capital and revenue resources will be available to build and commission the scheme according to programme and to operate the planned services."

Some understanding may have been reached with the DHSS. On the evidence available it appears to have known what was happening or not happening. It was obviously made aware of the budget overrun. If however the DHSS was not kept in the picture some of these statements would have been wrong or conveyed a misleading impression. The Capricode procedures had been departed from, in part; the design had not been frozen before the start of detailed design and the co-ordination drawings were now to be issued after tender; the project was not fixed so in terms of time and cost there could still be overruns; the architectural drawings could not be completed until RBH's requirements had been finalised; in turn there was and could be no programme for the supply of production material not available at tender stage (such as the co-ordination drawings); the capital resources were not adequate as the cost was estimated by NNN to be about £16,563,957 and thus greater than the latest DHSS budget of £15,027,000 (unless it were revised). In the event at a meeting of 4 September 1986 approval was given to RBH to proceed with some misgivings being recorded and subject to the familiar caveat: "without prejudice to any action which the Department might consider necessary in the event of an excess tender". However, if it were relevant, I would have accepted AA's submission that the RBH did not meet its obligations towards AA as set in clause 7 of the Supplementary Annexure as it did not freeze its brief; it did not work within its budget; and it decided to go out to tender without co-ordination information and on Bills that were out of date because of further changes. Nonetheless whilst none of the consultants was happy with the situation and both PMI and AA pointed out the obvious to RBH (which was well aware of what it was doing), none in fact protested and accepted pragmatically the decision to go to tender without the co-ordination drawings.

96. By mid December 1986 PMI was thinking of a date for possession with work commencing on site around 23 February 1987, as shown on a programme which was sent to AA (or perhaps 5 March 1987). Until a contractor had been appointed and had produced a programme it would have been sensible to have assumed that the contractor would need the co-ordination drawings some three to four months after starting if the installation of the M&E services (1st fix) was to begin about six months after the start. At a meeting on 12 October 1989 that estimate of a period of 16 weeks for the release of the co-ordination drawings was made or accepted by AA (since Mr Edwards accepted that if AA had a duty then it ought to register disagreement with it). It follows, in my view, that if the drawings were to be released progressively then AA should prudently have assumed at least the first batch of co-ordination drawings (i.e. for the lowest level, L1), might be required two months after start on site. This is what Mr Teale, of PMI, thought.

Advice Claim

97. RBH's case against AA as set out in paragraph 52 of the RASC and the particulars was that in the second week of February 1987 AA told Mr Teale that AA had the bulk of the design information ready for issue (that was denied by AA in its defence but admitted by PMI); that the advice was passed to RBH in a letter of 16 February 1987 and that RBH relied on it in allowing TW to start on 2 March 1987 when it would not have done had it known that that information was not ready and was not likely to ready for issue to TW in time. RBH's case against PMI was that the statement made in the letter of 16 February 1987 that "AA had the bulk of the design information ready for issue", was wrong and made negligently. It was intended to assure Brompton that the state of the design was such that the contractor could be permitted to start on 2 March.
98. Before considering the facts of the advice claim I will interpose a short consideration of the respective roles of PMI and WGI for although it is not strictly relevant to the "Advice Claim" it establishes PMI's position. It is relevant to RBH's case against WGI and PMI on other issues, such as the late issue of AA's co-ordination drawings. The terms upon which they were engaged are set out in the annex to the judgment. I shall refer to some of them. WGI's engagement was however affected by the arrival of PMI in 1985 and by the introduction of the Project Procedures Document. (The version referred to was dated September 1987 but its provisions had been in operation throughout the period with which I am concerned.) The parties' agreements which disposed of much of the trial in November 1999 included the resolution of the following issues:

"1. The answers to the preliminary issues listed for trial on 1 November 1999 are as follows (those marked "*" are by consent of the interested parties, namely the claimant, PMI and WGI for Issue 1,….):

Issue 1(a):* Were PMI and/or WGI obliged to act as design team leader?

99. WGI, in the sense set out at clause 4.2 of WGI's terms of reference.
100. So far as PMI is concerned, the nature and scope of its duties is as set out in answer to Issue 1(b) below.

Issue 1(b):* Did the Project Procedures Document qualify the terms of PMI's retainer as alleged in paragraph 18 of PMI's Defence?

101. No, but the Project Procedures Document (September 1987 issue) defined the role and responsibility of PMI where and to the extent that these were not fully defined in its retainer.

Issue 1(c):* Did the Project Procedures Document circumscribe and/or define the duties of WGI as alleged in paragraph 10 of WGI's Defence?

102. The Project Procedures Document (September 1987 issue, as qualified in WGI's letter of 16.11.87) defined the role and responsibility of WGI where and to the extent that these were not fully defined in the main contract or its retainer.

Issue 1(d):* Was WGI under the duty alleged in paragraph 50 of the Statement of Claim?

103. The production of co-ordination drawings and builders work information by AA was part of the work of the design team to which the relevant obligations in clauses 1.22, 1.24, 1.25. 2.42. 3.10 and 3.11 of WGI's Terms of Reference (at A/112, 113, 119, 121 and 123-4) were directed.
104. WGI was not under a duty to check the detailed content of AA's drawings or builders work information to ensure that they did not conflict with the drawings or information produced by others, but it was part of the proper discharge of its duties as architects that it would take reasonable steps to satisfy itself that the relevant drawings or information were on their face of an appropriate standard.

Issue 1(e):* Was PMI under the duty alleged in paragraph 51 of the Statement of Claim?

105. Yes, to the extent set out below.
106. (a) The production of co-ordination drawings and builders work information by AA was part of the design stages of Phase 1 of the Hospital to which the express terms of PMI's retainer pleaded at paragraph 51 of the Re-amended Statement of Claim applied.

(b) PMI was under a duty to oversee WGI's administration of the Main Contract pursuant to clause 11(k) of its retainer.

Thus the answers in paragraphs 3 and 4 are to the effect that the Project Procedures Document did not qualify or limit the duties of WGI and PMI, but it provided some further definition of their roles and responsibilities. WGI's retainer included the following:

I. INTRODUCTION

107. 2 General Relationships
108. 22 The Architects will be expected to co-operate to the full with all the consultants appointed by the Board, and will have the specific responsibility of co-ordinating the work of the Design Team.
109. 23 The Board have retained a firm of Management Advisers, Booz, Allen and Hamilton [subsequently Arthur Young] - to assist them with various aspects of the project, including:

- The provision of advice on organisational issues, and planning procedures to manage the project

[…]

- The development, and implementation of appropriate procedures to be followed throughout the design/build/ commissioning stages by the Board, its officers, and the Project Team.

110. 24 The Architects selected are expected to co-operate with the Management Advisers and to provide them with the necessary information to enable them to prepare and update the project status reports to be issued from time to time to control the project.
111. 25 As Design Team co-ordinators, the Architects would be expected to take all possible steps to ensure** that all members of the Design Team provide the information requested of them.

** [Footnote] The Board will consider that the Architect has take all possible steps if he can show to the Board's satisfaction that he has taken practical action to attempt to get the members of the Design Team to fulfil their obligations and to contribute information requested of them. This information may be related to the overall time and cost control system or to other systems and procedures as in operation at the time.

112. 26 Notwithstanding the co-ordinating role of the Architects, the Project Manager and/or his Management Advisers retain the right of maintaining direct contact with individual members of the Design Team - particularly in respect of the overall time and cost control of the project.

II. THE PROJECT ORGANISATION

113. 3 The Project Manager
114. 30 The Project Manager is responsible for managing the Project Team and for co-ordinating the work of all of its members. […]
115. 4 Position of the Architect in Project Organisation
116. 42 The Architects will act as co-ordinators of the Design Team and be responsible for the direction and integration of the work of all members of that team. Additional to his role as the Design Team co-ordinator, the Architect will be required to provide regular planning and updating information - relating to Design Team progress and project cost implications - to the overall project control system that will be maintained by another member of the Project Team - the Management Advisers and/or members of the hospitals' project staff.
117. 421 All members of the Design Team will have their individual agreed programmes of work included in the project control system and the Management Advisers - or other responsible for maintaining the system - will retain the right of direct access to all members of the Design Team to ascertain their status relative to the overall programme.
118. 43 INSERT
119. 44 The Architect will accept instructions issued by the Board on all procedures to be followed on the project. […]

III. GENERAL CONDITIONS

120. 0 This section deals with the general conditions of engagement and refers to the RIBA handbook "Conditions of Engagement". It reaffirms certain conditions, and alters others to suit the particular circumstances of the Postgraduate Cardio-Thoracic Centre project.
121. 1 Responsibilities
122. 10 The basic service expected from the Architects will be the 'normal service' as amplified and modified by these Terms of Reference.
123. 11 The Architects will be responsible for the direction and integration of the work of the following consultants nominated and appointed directly by the Board:

- Quantity Surveyor

- Structural Engineer

- Services Engineer (Mechanical and Electrical)

However, individual consultants shall be entirely responsible for the detailed design, supervision and for their own performance of the work entrusted to them.

V. ARCHITECTS' PROGRAMME

Design Programme

124. 21 The Architect will be responsible for preparing an overall plan and programme showing the issuance of all design drawings - architectural, structural, services and others - recognising that a reasonable time must always be allowed for fellow team members to complete their work. It shall be agreed - before being finalised - by all members of the Design Team and the Board.
125. 22 The Architect will ensure that a clear design work programme is available, within a reasonable time, to the Structural and Mechanical Engineers for their agreement.
126. 261 All design and production drawings and specifications are to be completed prior to tendering for the main contract. […]

The footnote 1 to clause 5.261 provided, inter alia, that: "In the Terms of Reference the expression "production drawings" has been used to indicate the standard and detail of drawings as applied and used by the Architectural profession. In order to relate this term to other official documentation including that used by the professional bodies of the other members of the Design Team, this footnote has been written. Production drawings for the work of the M &E Engineer in the context of this project shall be deemed to be equivalent to the term "working drawings" as used in the Annexure to ACE Model Term of Agreement D with the proviso that as an additional duty these working drawings shall provide a level of detail that work could be built or installed using these drawings."

127. PMI's retainer had the following terms:

"Clause 11 (e): "Monitor and co-ordinate the design stages to ensure achievement of the dates set for the commencement of construction."

Clause 11 (f): "Oversee the preparation of design programmes for all elements of the project within the master programme."

Clause 11 (l): "Oversee the design team's administration of construction and building contracts…"

Clause 11 (m): "Attend design and site meetings as necessary to co-ordinate the flow of production information to the contractor."

128. The Project Procedures Document contained the following:

"1. PURPOSE OF THE DOCUMENT

129. 1 The purpose of this document is to define the roles and responsibilities of the Client and professional consultants employed on the National Heart and Chest Centre Phase 1, where these are not fully defined in the Contract or in the Terms of Engagement of the Consultants. The intention is to provide a clear set of guidelines for all concerned on the actions necessary to fulfil these roles and responsibilities so that the Client's objectives for full implementation of the design brief, on programme, and within budget are achieved.

…

130. RESPONSIBILITIES

Project Manager

Design Co-ordination and Integration

…

131. 5 The Project Manager is responsible for monitoring the flow of construction information provided by the Design Team to ensure that the requirements of the contractor are met (see 6.1). In the event of any delay in issuing construction information the Project Manger will advise the Client and the appropriate member of the Design Team on suitable action to maintain programme.

Construction

…

132. 6 The Project Manager is responsible for monitoring the progress of the works (see 5.4) and will for this purpose maintain day-to-day liaison with the Contractor on site. […]

Architect

Design Co-ordination and Integration

133. 7 The Architect, as leader of the Design Team, is responsible for the total co-ordination and integration of the work of the other consultants and for the production of working drawings, specifications and schedules for the building fabric and finishes in accordance with the Design Brief.
134. MEETINGS

Site Meetings

135. 1 The purpose of these meetings is to establish the progress of the Project, the issue of construction information, and to discuss and matters raised by the Contractor's monthly progress reports.

[…] Chaired by: Architect

Design Review Meeting

136. 2 The purpose of these meetings is to ensure that the flow of information to the Contractor is on programme and to establish that Clients' requirements have been catered for; to discuss any matters that may arise affecting time and cost; to consider and advise on proposed Client changes.

[…] Chaired by: Project Manager

137. PROGRAMME AND PROGRESS

Master Programme

…

138. 2 The Contractor will submit a Master Programme including a network analysis substantiating the programme contents in accordance with the General Conditions of Contract. The Project Manager will advise the Architect on the acceptability of the Master Programme. The accepted Master Programme will provide the basis for monitoring the progress of the building works and reporting to the Client.

Construction Progress

The Contractor will submit short term detailed programmes at 8 week intervals in accordance with the General Conditions of Contract. The Project Manager will advise on the acceptability of these programmes, monitor progress and report delays to the Architect.

….

139. 5 During the contract period the Project Manager will endeavour to identify potential bottlenecks and possible causes of disruption or delay and advise the Architect and relevant members of the Design Team so that preventative or corrective action may be taken.
140. INFORMATION REQUIREMENTS, RECORDS AND DISTRIBUTION

Information Requirements

141. 1 The Contractor will prepare a schedule of Information Requirements covering the total Contract. The Contractor will also prepare a fully detailed Information Requirements Schedule for each Site Meeting covering the forthcoming period and highlighting information requirements for long lead time items. The Project Manager will establish that these requirements are considered reasonable by the appropriate members of the Design Team.

Recording and Monitoring

…

142. 3 The Project Manager will monitor the issue of working information to the Contractor against the detailed Information Requirements Schedule and determine what action should be taken to remedy any delays which might occur."

It is clear that therefore from PMI's retainer and the Project Procedures Document that the leader of the team was to be PMI and not WGI which was displaced from the traditional role of the architect. WGI had now to communicate with PMI (the "Management Advisers" in WGI's contract), when it had expected to deal only with RBH's resident project management or some general consultant. PMI was however more than a mere client's representative; it was an informed or intelligent representative (as indeed was RBH itself) so WGI was in my view entitled to expect that it did not have to tell PMI, as WGI's virtual client, what was expected of it as a client or as a client's representative for this major and sophisticated project. PMI referred to some observations of Goddard LJ, in relation to solicitors, in Yager v Fishman [1944] 1 AER 552 at 557:

"The nature and amount of advice which, in a matter of this sort, a solicitor would be expected to give to a person wholly unacquainted with business may differ very materially from what he would offer to an experienced business man, who would naturally decide for himself the course he thought it in his interest to take."

143. Mr Bartlett made submissions to the same effect based on Virgin Management Ltd v De Morgan Group plc [1996] N.P.C.8. and National Home Loans Corp v Giffen Couch & Archer [1997] 3 All ER 808 which approved the dicta of Donaldson LJ in Carradine Properties Ltd v D J Freeman & Co (1982):

"The precise scope of that duty will depend inter alia upon the extent to which the client appears to need advice. An inexperienced client will need and be entitled to expect a solicitor to take a much broader view of the scope of his retainer and his duties than will be the case with an experienced client."

If expert evidence were here required (which it is not for the reasons that I have given) Mr Coleman gave a series of answers to Mr Taverner which in my view accurately described the contractual and working relationship between PMI and WGI and other consultants:

Q: My suggestion at this stage is that, in terms of them being the intelligent or informed client, looking at it from below and the design team below, they are entitled to proceed, when performing their own engagement and their own functions?

A. Yes.

Q. That PMI are knowledgeable about the programming of a hospital project such as this?

A. Yes.

Q. They are also entitled to proceed on the assumption that PMI know about co-ordinating the efforts -- they are knowledgeable and experienced in co-ordinating the efforts of all of the participants in the project to be able to fulfil that function of bringing home, or aim, of bringing home the project on time and under budget?

A. Of co-ordinating the activities of the various parties, yes.

Q. Indeed. Thank you. But what PMI are not are designers; would you agree with that?

A. Definitely not.

Q. They do not take responsibility for the efficiency or the practicability or the fitness for purpose of the design?

A. No.

Q. And it is also not PMI's job, is it, to co-ordinate in the sense of fitting together the pieces of the design?

A. No, that is the project -- that is the role of the architect.

Q. The fixing of the pieces, the bringing together of the design so that it can be construed in that qualitative sense --

A. Yes.

Q. -- is the responsibility of the architect?

A. Yes.

Q. And the architect's responsibility is to involve himself in what I think others call this iterative process, if one is concentrating one's mind on the engineering and architectural, mechanical and electrical aspects and the architectural aspects of the design?

A. Yes.

Q. And WGI are entitled to assume that the pieces of the jigsaw which are provided to them by CNM, in general terms, or by AA themselves, fulfil their function?

A. Yes. I believe all consultants should rely on advice from other consultants. That is the only way it works in practice.

Q. Notwithstanding that PMI have the ability within the regime set up to be able to direct the design team?

A. Yes."

Mr Coleman said also, later, that: "it would not be efficient and proper project management for the same function to be being done by two parties" and he would not expect WGI to fight with PMI as to who should be producing the programme. Happily this statement of practice or recital of relevant factors (or reading of the contractual documents) was reflected in Mr Hutchings' own approach. Although WGI started by preparing programmes it ceded responsibility to PMI so that whatever its contract might have required it now reasonably expected PMI to look after programming the issue of design information to TW. WGI would be concerned to see that it happened properly because any failure could result in delay. WGI remained responsible for the integration of the designs of the consultants (see cause 3.11 of its contract conditions) and for the co-ordination of such information (see clause 3.7 of the Project Procedures) and to that extent only was concerned with the timely flow of information to TW. I now return to the facts.

144. As already recounted TW was issued with a letter of intent on 23 January 1987. The figure was qualified "or such lower sum as may be agreed following the current discussions". That was a reference to negotiations about the Bill of Reductions. The changes had been listed in a letter of 9 December 1986. They affected the work of all consultants and in the case of AA Mr Teale agreed that there might have to be some alterations to AA's specifications and single service drawings and did not demur at the suggestion that areas affected would include an aeration room for the Hospital Sterilisation and Disinfection Unit (HSDU) on level 1, the possible omission of air conditioning to the pathology department on level 2, a possible replanning of the haematology department. At a meeting to review the tender negotiations on 30 January 1987, TW issued a preliminary programme and a preliminary Schedule of Information Requirements. These also reflected the uncertainties outstanding because of the need to complete the Bill of Reductions. The minutes recorded the following (T.T. is TW):

"1.0 Tender Negotiations T.T. reported that pricing of the Bill of Reductions would now be completed by Wednesday 4 February 1987. The pricing of the building sections was practically complete but following issue of the final information for services last Wednesday additional time was necessary. T.T. raised the question of other possible savings that had been put forward by them but not proceeded with. The Design Team had looked into all these and established that savings were not possible. ….. 2. Contract Documents NNN would require 3 weeks to provide a set of Contract Documents from conclusion of the Bill of Reduction negotiations. Following this it would be NNN's intention to provide a working document summarising the B of Q, Addendum B of Q and the Reductions B of Q. It was agreed that March 2 1987 would be the start date for the Contract. T.T. would make arrangements with PMI to visit site next week. Entry to area allocated for site offices and car parking can be cleared for 9 February 1987.	T.T. P.M.I.
3. Joint Venture Agreement This would be based on the separate company requirement as proposed by T.T. P.M.I. to confirm.	P.M.I.
4. Programme of Work T.T. issued provisional Programme anticipating only minor amendments to this document. T.T. would discuss entry onto site next week and would expect to have accommodation available for the Resident Engineer 3 weeks after start date.
NNN called attention to Programme Items 60 – 63 and related this to the 12 week plant commissioner requirements.
T.T. saw no problems and confirmed that detailed commissioning programmes would be issued based on contract requirements.
5.0 Information T.W. issued a preliminary issue of information schedule. Dates had been omitted from a number of items to allow discussions with W.G.I. W.G.I. would consider the list and make arrangements for meeting.	W.G.I.
C.N.M. issued 5 no. copies of drawings and bending schedules for southern half of Level 1 slab. Remaining Level 1 slab perimeter retaining walls, manholes etc, would be issued 13 February 1987. Level 2 slab and reinforcement would be available 20 March 1987. Agreement to be reached on issue of remaining reinforcement.
C.N.M. issued the following schedule of information required by C.N.M. some of which was urgent.
a. Sheet piling temporary works proposals with calculation and drawings.
b. Crane base proposals by T.T.	T.T. urgent
c. Pump Mix and RMC information.
d. Reinforcement supplier, source, mill test certificates. Backup supplier.
e. C.N.M. noted that pull out bars cannot be used in all cases.
f. Details of holes through slabs for cranes – precise dimensions.	T.T. urgent
g. Mould suppliers – trough formers.
h. Structural steel fabricator.
Stock steel – C.N.M. to issue to P.M.I. proposed stock steel in form of Bending Schedule.	C.N.M.

145. The Schedule of Information read as follows:
"Schedule of Information Requirements Based on Preliminary Programme TWC/86/176/001 Rev A

		Issue Required By
1. 1:100 general arrangements, sections and elevations.		16 February 1987
2. 1:2- general arrangements, elevations and details showing brickwork and blockwork layouts and details.		9 November 1987
3. Schedule of finishes.		4 January 1988
4. Roof asphalt details.		29 February 1988
5. External works details.		23 May 1988
6. Details of oxygen and refuse compounds.		9 January 1988
7. General arrangements, section and elevation.		16 February 1987
8. Reinforcement details and bending schedules for foundation and level 1 slab.		16 February 1987
9. Details of lightning pits.		16 February 1987
10. Reinforcement details and bending schedules for reinforced concrete frame.		13 April 1987
11. Structural steel frame layout to plant room.		9 November 1987
12. Structural steel layout to level 5 windows.		30 November 1987
13. Underpinning details.		28 November 1988
14. Structural steel layout to oxygen and refuse compounds.		9 January 1989
15. Details of underground drainage.		16 April 1987
16. Layout of incoming services.		16 February 1987
17. Details of ductwork to level 1.		20 July 1987
18. Setting out drawing and site investigation report.
19. Details of any service diversions. 20. Details of demolition.
21. L.A. planning permission details including working hours and site access.
22. Concrete specification.
23. Drawings and details of underslab drainage and services including sumps, pumping chambers, lightning conductor earthing points, petrol interceptors, manholes.
24. Details of services connection routes and Instructions to place with Statutory Authorities.
25. R.C. drawings and bending schedules for level 1 slab including machine and plant bases plinths, wall and column starters.
26. Level 1 details: Builders work, lifts, MEPD, services, floor finishes, manhole and duct covers expansion joints, drainage channels, waterproofing.
27. R.C. details and bending schedules for walls, columns, liftshafts and staircases level 1 to 2 including:-
Builders work details, recesses and fixings required by lift sub-contractor.
Drawings and fixing details of primary, secondary and tertiary steelwork including access and cat ladders, details of wall and column finishes.
28. Plant installation details including access requirements.
29. Schedule of M & E plant including loadings.
30. R.C. details and bending schedules for level 2 slab including Builders work, floor finishes, cast in services, fixings, conduits etc, brickwork support and fixings. …….
54. Reflected ceiling plans. ….
60. Details of architectural metalwork and balustrading.
61. Details of fire protection and fire stopping.… 65 Mechanical, electrical , plumbing and specialist services drawings details and specification

146. Item 65 on TW's list was a key item as regards AA's work: "Mechanical, electrical, plumbing and specialist services drawings details and specification". TW did not indicate when these would be required, as it had been agreed at the meeting on 30 January with WGI that: "Dates had been omitted to allow discussion with WGI. WGI would consider the list and make arrangements for a meeting." (See item 5.0 above).
147. AA sent its views on the Schedule in a letter to PMI dated 10 February 1987. It said:

"Further to the issue of the schedule of information requirements, based on the preliminary programme TWC/86/176/001 revision A, issued by Taylor Woodrow, we have the following comments:-

Items 1 – 8	Architectural/Structural issue.
Item 9	The position and details of earthing/lightning pits are shown on our tender drawings and detailed within our specification, but are subject to co-ordination with the revised structural drawings.
Items 10 – 14	Structural issue.
Item 15	Subject to final alteration to co-ordinate with structure as discussed, will be issued prior to date required – 16 April 1987.
Item 16	Following alterations to plant areas at Level One, the final position of incoming services had to be renegotiated with the Supply Authorities. This process is still continuing and we shall pursue this with all power.
Item 17	We presume that this refers to structural floor ducts which have been agreed with Clarke Nicholls and Marcel and co-ordinated with Genever and Partners. But we are now awaiting final drawings from the Structural Engineers.
Item 18	Architectural item.
Item 19	There are no service diversions necessary.
Items 20 and 21	Architectural/Structural items.
Item 23	See comments on Item 15.
Item 24	See comments on Item 16.
Item 25 – 27	Structural items.
Items 28 & 29	All plant information is complete other than that altered by the Level One alterations and the pathology changes which still await Client approval. But the information shall be issued to meet any reasonable date set by the Contractor.
Items 30 – 53	Architectural/Structural items.
Item 54	Revised Level Two, Zone 6, plan awaited and co-ordination between Austin Associates and Watkins Gray International necessary.
Item 55	Mechanical and Electrical Contractor's responsibility.
Items 56 – 64	Architectural/Structural items.
Items 65	As previously discussed/or are ready for issue with the exception of the co-ordination drawings.
Item 66	Architectural item.

Thus AA said that in respect of the balance of the M&E information (i.e. the rest of AA's drawings) the position was "As previously discussed/or are ready for issue with the exception of the co-ordination drawings". However, at that stage AA was in fact still altering its single service drawings upon which little or no work had been done for six months. Some also required alteration to deal with the savings and other changes required by RBH, so that many were not ready for issue, as Mr Tyler agreed. Indeed they were not issued until much later: those for level 1 although dated March were not issued until about 3 April; and the drainage drawings for level 2 and above about 16 April. Accordingly, as Mr Tyler accepted, the drawings needed several weeks' work before they could be completed and issued. Single service drawings for zones where significant alteration was not anticipated still had to be checked. Nevertheless AA instilled confidence in TW since Mr Robert Edwards had a meeting with TW on 13 February 1987 at which

"Taymech were shown a fair selection of the drawings for the site including detailed plant rooms, some single services drawings and a few co-ordination drawings for the Project. I can recall Mr Palmer [from TW] commenting on the good quality and detail shown on the drawings although I cannot now recall whether these comments specifically related to the sample co-ordination drawings. I am certain that AA did not receive any adverse comments about these drawings at the meeting. The quality and detail in these co-ordination drawings were the same quality and detail that AA had provided on previous Hospital projects on which I had worked. The co-ordination drawings shown to them were drawn in pencil rather than ink, and were only intended to be samples to allow Taymech to anticipate the type of drawings they would be receiving when they were ready and the various changes had been resolved. However, the quality and detail given in these example co-ordination drawings were the same as those provided to Taymech later during the year and they could have used them had they so chosen and if the design had remained static."

Mr Dix said in his report and confirmed in court that, depending on the manpower, rates paid and other factors affecting the effort that AA might make, 5-7 weeks would be the likely time needed for the co-ordination drawings for Level 1 (once the single service drawings for that level were drawn). The experts, Mr Dix and Dr Arnold, agreed that there was no identifiable reason "why AA could not have completed, in all practical terms, their co-ordination drawings prior to the end of May 1987." Mr Edwards wished to reserve his position until other changes had been discussed. However the effect of Mr McKenzie's agreements and his cross-examination by Mr Edwards-Stuart is that Mr Edwards' reservation does not warrant consideration. In my view Mr Dix's assessments in his report were based on the correct assumptions and thus were reasonable and to be accepted for, although they differed in part from those made by Mr Down, they were all justified by Mr Dix. I conclude that on 10 February 1987 a large number of drawings were not ready to be issued for various reasons, in particular that they had not been worked on for about six months during which there had been changes. The answer given by AA against item 65 was therefore inaccurate, or misleading.

148. It is right to record that RBH acknowledged that at this time there were changes in the pipeline to which I shall later refer. These included changes of level which affected drainage invert levels and the ceiling voids between levels 1 and 2 and 2 and 3; the redesign of the plant rooms on level 1; and a change of radiators from Hudevad to Stelrad. Since all these changes were then known AA should have taken them into account. (Mr Dix was quite incredulous at the suggestions made to him that the change in radiators could have had any significant effect for a competent services engineer, and since his answers are convincing I accept them.) In addition some other changes were being contemplated: omission of air conditioning to the pathology area; replanning the haematology department; revisions to the HSDU area to take account of changed standards issued by a draft HTM 10 in mid 1986 (the implications of which had yet to be digested by AA and RBH), and changes to wards on levels 4-6 (but this did not happen).
149. In my view RBH was right to draw attention to the actions of others at that time. When WGI sought the views of the design team about TW's lists, CNM replied on 11 February with a proposed programme. It set out dates for the provision of information for items on TW's schedule for which no date was given (in particular items 30 onwards on TW's schedule). With the exception of level 1, CNM took TW's activity start dates and worked back from them. RBH rightly submitted that AA could have done something similar, even allowing for the fact that CNM had more to go on as its information was needed earlier by TW. CNM's dates were based on a lead time of about three months before the relevant work was currently programmed to commence. WGI was able so to inform TW on 26 February.
150. I do not consider that PMI was in fact aware of the true situation as set out by Mr Tyler in his evidence. On 13 February Mr Teale visited AA specifically to check if "AA had the bulk of the design information ready for issue". Mr Hammond was present. In summary Mr Teale said that at the meeting AA was "demonstrating . . . that they were in a position to finalise delivery of information to the contractor" at the time when TW started on site. By bulk one would ordinarily mean "nearly all" such drawings in terms of their content so that TW could not complain of lack of information, since numbers alone might not represent "bulk" in that sense. Such "bulk" would normally have to include co-ordination drawings since they formed part of the corpus of drawings for which AA was responsible, unless of course RBH knew that such drawings were not included. What of course was needed was the "the bulk of their information …. in order to enable the contractor to make an effective start on site to plan the M&E installations", but then that had to be followed up. Since Mr Teale had been paying regular visits to AA's office he ought to have been aware of the status of AA's work. He obviously knew that work had to be done to implement the changes required by RBH but unless AA told him he would not or would not necessarily have realised how far behind AA was. On 16 February 1987 Mr Massey of PMI reported to Mr Plant of RBH and suggested that all was well for the agreed start on 2 March – a matter which was of concern to RBH:

"I have asked John Wragg to prepare a statement showing the action and results of our negotiations with Taylor Woodrow/Taymech, which were finalised on the 13 February.

Unfortunately we have been unable to reduce the tender amount by £754,000 and have finished with a £60,000 shortfall.

One of the problems in making proposals and negotiating savings with a single tenderer is that other factors come into play and a tenderer who presumably knows that we have no alternative tender, is less inclined to make generous gestures.

The Architect and myself met Taylor Woodrow Directors Frondigoun and Knight last Friday in an attempt to close the deficit. We have to report that Taylor Woodrow have contributed objectively to the savings exercise. They have stated that they wanted to build this project, they wanted the turnover, they had the right team available and they had the benefit of an in-house team bid. They had made a calculated attempt to land the project at minimal profit.

I do not recommend that we seek any further gestures from Taylor Woodrow and I hope that other funds may be made available to meet the shortfall.

If we proceed immediately as I have provisionally arranged with a formal commencement date on the 2 March, then we will have to ensure that all information is available to them in good time and that no changes are made during the construction period. We are satisfied that full information on architectural and structural aspects is available and Brian Teale visited Austins [sic] on Friday and has reported that they have the bulk of design information ready for issue"

Mr Robert Edwards said that bulk meant "if we take co-ordination out of it". However RBH was not told that the co-ordination drawings had been excluded, even if they were not required for some time. Accordingly RBH was misinformed, as Mr Robert Edwards said that it was.

151. TW could therefore be permitted to start on 2 March 1987. In addition on 18 February 1987 Mr Massey informed Mr Edwards of AA (and, by copy, RBH):

"We are pleased to confirm on behalf of our Clients, the Chairman and Governors of the National Hearts & Chest Hospital that instructions have been given to proceed with Phase I.

Taylor Woodrow/Taymech are to be instructed to proceed with the construction in the sum of £17,967,623 with a contract commencement date of the 2 March 1987. This instruction was given following agreement with the DHSS to reduce the contingency and dayworks allowance by £30,000 and to reduce the provisional sums by a total figure of £30,000.

We have assured our Clients that the information required to construct the facility is available and that there is no reason that the Contractor shall be able to claim delay due to late release of information. Our Clients furthermore have agreed that no instructions to change the building will be made prior to practical completion, unless such changes are of a relatively minor nature and can be accommodated by the Contractor without delay."

152. The letter of 16 February 1987 was not sent to AA. It did get PMI's letter of 18 February. Since this said that PMI had advised RBH that "the information required to construct the facility is available and that there is no reason that the Contractor shall be able to claim delay due to late release of information", it was both more forceful and optimistic than the earlier letter so AA lost nothing by not seeing the first letter.
153. AA did not however reply to correct PMI's understanding of the position, even though it was expressed so clearly. Mr Robert Edwards said in his witness statement that he did not see PMI's letter of 16 February but had he done so he would "have complained to PMI, as it was (and is) very misleading and does not reflect my recollection of that period." Later he said that he could "only speculate that either Alan Massey or Brian Teale were being over-enthusiastic and "talking up" the project, which was a dangerous thing to do when it was in such a mess." On the other hand in dealing with the later letter he said that he did not reply as he thought that the decision had been made by RBH and that AA should be able to get the necessary information to TW when required "so long as the Board kept its assurance and everything ran smoothly". I find these statements inconsistent but the latter is consistent with what AA said and did and is to be preferred. Mr Teale confirmed in evidence that RBH relied on PMI's advice, as was only to be expected. The fact that AA did not dissent from the statement in PMI's letter of 18 February naturally led PMI to assume that there was no reason to suppose that AA would not have its drawings ready on time to met TW's needs. If the opinion of an expert were necessary to support this conclusion then Mr Dix provides it since he agreed that "there was every reason for a person in the position of a project manager to conclude in February 1987 that AA should be able to get their co-ordination information out within three of four months" and it was a "realistic possibility" that those for Level 1 could be prepared within 5 to 7 weeks although he thought that the changes made to pathology might have prevented all the drawings actually being produced within three to four months. Moreover Mr Tyler agreed that paragraph 8.3.5 of the Report of AA's expert, Mr Stephen Edwards, was not an unreasonable statement. In my view it is correct. It reads:

"8.3.5 RBH/PMI thus placed the construction contract for the new hospital before all construction information was sufficiently complete and available in final form. Considerable design work was still in hand, and still more needed, much more than was sensible and prudent for the administration of a fixed price, lump sum, JCT80 contract. Substantial claims for disruption and delay were almost bound to follow."

154. RBH authorised a start on 2 March 1987. In a "Preliminary Contract Programme" dated 16 February 1987 PMI used November 1987 as the date for the start of M&E first fix. Accordingly I do not accept AA's case that PMI must have known that AA's response to item 65 of TW's requirements "as previously discussed….." meant that a number of single service drawings were still in a fluid state or otherwise undrawn, as AA either had been or still were waiting for client confirmation or information from other parties and would or might not be ready on commencement. In addition to the summary in paragraph 8.3.5 of his report Mr Edwards also drew attention to changes being made by RBH which affected the production of AA's drawings but in my view his opinion relates to the general state of AA's preparation.
155. I thus conclude that, as the co-ordination drawings were not ready for issue by mid February 1987, the lack of many single service drawings meant that AA did not have "the bulk of the design information ready for issue", as Mr Tyler agreed and that to that extent the statement was untrue and made negligently by AA and contrary to the terms of AA's retainer. The bulk for this purpose obviously did not include co-ordination drawings. It remains unclear why the statement stood. Clearly AA had an interest in not revealing how far behind it was. Of the possibilities available AA in my view knew that there was a real risk of not being able to provide the drawings to TW on time. I do not consider that AA honestly believed that in some way which was not explained it could and would meet TW's requirements If so, it could not have held that view if it had taken care to justify it. The absence of staffing records inhibited Mr Dix from expressing a view. I have to reach a conclusion on the available evidence which includes an assessment of the witnesses from AA and the other parties. Probably AA thought that somehow it would be able to avoid delaying the contractor because RBH would not stop changing its mind. AA certainly decided not to advertise (as RBH put it) how far behind they were. Even if AA had not told PMI that the bulk of the drawings were ready for issue, it ought to have corrected the statements in PMI's letter of 18 February and advised PMI (or even WGI) that the co-ordination drawings would or might not be ready on time.
156. Although AA is liable to RBH equally PMI has at least a case to answer. Mr Teale was there to find out what was going on and to get to the bottom of the alternatives which I have set out, although Mr Tyler said that AA did not see much of him and that its main contact was through Mr Wragg. I conclude, having seen and heard Mr Teale (and allowing for the fact that he was probably not asked about the events until some 10 years afterwards) that he almost certainly did not make any proper and thorough investigation and was too easily persuaded by AA not to do so. Mr Teale did not appear to me to be some one who would make things up. He said that he would not have been able to give Mr Massey of RBH the information that he gave him if it was true that the drawings had not been changed or developed or worked on in 6 months. He therefore accepted that, if that was the state of affairs, he should have discovered it and therefore would not have reported as he did. That was the purpose of his visit. I do not therefore accept Mr Tyler's evidence that the situation (other than in relation to co-ordination drawings) was well known by other members of the project team from discussions between them. If it had been known I have no doubt that some one would have intervened to warn RBH that the start contemplated was dependent on an assumption which might turn out to be incorrect.
157. As regards the co-ordination drawings the impression was that AA would produce them to meet TW's requirements and it attracts the same or similar criticisms and conclusion. AA's case was that in mid-February 1987, notwithstanding the uncertainties and the considerable work that remained to be done, it thought that it would be able to produce the co-ordination drawings by the time that the contractor needed them. It did so since, as Mr Edwards said: "…gut feeling told me we would have done it. …. This is not the first time that we have been in this sort of situation". The experts (Mr Dix, Mr Stephen Edwards and Dr Arnold) also agreed that "a reasonably competent consulting engineer could anticipate commencing co-ordination drawings for level 1 first and would not need a contractor's programme to know this on a project such as this". In answer to Mr Williamson, Mr Dix considered that there was reason for someone in the position of Mr Teale to have concluded that AA should be able to get their co-ordination information (as he put it) out within three or four months, and the level 1 drawings within in about five to seven weeks from a planned start. But were AA's forecasts and alleged feelings based on reality? In my judgment Mr Teale either did not investigate whether the drawings would be ready or was dissuaded by AA from doing so. As a result AA managed to conceal from everybody else that it was not really ready.
158. In my view Mr Teale ought to have had a programme by which he and PMI could have seen the progress of the production by AA of its drawings. Some such programme had been used in the previous year. It would have enabled him to test AA's statements as it would have had to demonstrate how it would produce the drawings. Mr Teale agreed that such programmes were desirable and that "in order to monitor information flow you have to have some sort of programme against which to monitor it" . He also accepted that if there had been a clearly established programme of the release dates for the co-ordination drawings, it was likely that things would have gone better than they in fact did. Mr Coleman agreed with Mr Teale.. He also agreed that Mr Teale should have got, if not a programme, then a fairly firm plan from AA as to when it would issue co-ordination drawings by certain dates which it considered would be more than adequate for TW. Mr Coleman baulked at the conclusion that if that was not done then PMI did not act with reasonable competence, but in my view only because there was no record of what Mr Teale had done, the absence of which he did regard as unsatisfactory. In my judgment there is no record because Mr Teale did not take those prudent steps to obtain for RBH a reliable basis for advising it to proceed and that accordingly PMI also failed in its duty towards to RBH as result of which RBH was misinformed on 16 February (and, of course, the misleading statement was not corrected by PMI, as AA did not do so).
159. It would be kind to find that PMI thought that everybody else was aware of AA's actual position (as opposed to AA's unreliability), but I cannot do so as there is no real evidence to support it (although there can be no doubt that no one could have thought that the co-ordination drawings were then ready). Such a finding would mean that PMI knew that its advice to RBH was incorrect and unjustified as it did not tell the whole story. PMI had many failings but not of that gravity. On the other hand AA obviously knew that the co-ordination drawings would probably not be ready within 4 months. They certainly ought to have been ready as AA had enough time to prepare them and, as Mr Dix said they could easily have been prepared much before they actually were (autumn 1987). However Mr Dix, in a typically careful answer, did not say that AA ought to have warned PMI and RBH of the likelihood that they would not be ready on time but only because he had insufficient information about AA's staffing to justify such an opinion. (That does not affect the time by which they ought have been issued.) As already set out I think that AA believed that it would in some way be delivered from its predicament. Mr Tyler said that it was AA's "considered position" that there was no reason to suppose that M&E information would not be available to the contractor as and when he needed it and: "It was a difficult task but we thought it could be achieved". Mr Edwards said that AA was confident that it could feed the information to the contractor on time. Perhaps AA thought that there would be more changes which would excuse everybody. In his second witness statement Mr Tyler said:

"Further, I took the view that if no more changes were made and a tight control over the contractor was taken by PMI and the Supervising Officer then there was a chance that the scheme could be completed in the manner required."

He certainly thought that the risk being run was not "minimal".

160. If PMI had known of AA's situation, I am sure that, unpalatable though it would have been to RBH and the DHSS, either TW would not have been allowed to start on site when it did, or measures would have been taken to ensure that the risk of delay was minimised. The money allocated had been used up; the contingency figure was very low; I do not believe that any project manager, even PMI, would have permitted its client to have courted such a danger at that stage (see Mr Adams' view). I am certain that had Mr King and Mr Plant been given the full picture they would not have been permitted by the DHSS to go ahead. It is true that Mr King's evidence was that only "something very serious" or "a disaster" would have caused RBH to pause, but in my view the situation at that time, if known, would have been so regarded. In such circumstances the likelihood of TW being able to make a claim for the late delivery of co-ordination drawings should have been eliminated or reduced to an acceptable risk (i.e. in the context of this project, a minimal one). In terms of "loss of a chance" I would assess the chance of RBH going ahead, had it been correctly advised by AA or PMI, as no higher than 5%.
161. RBH also pleaded that had AA had advised it of the true state of affairs then RBH would have contracted with TW to produce the co-ordination drawings. The case was not formally withdrawn but I am sure that TW would not have agreed to produce the co-ordination drawings, not least since, as will become apparent, there was a shortage of competent engineers and draughtsmen. In addition it would have taken some time to negotiate the change so any saving of time would have evaporated and TW would naturally have taken advantage of its position as the preferred contractor so the price increase would not be controllable by RBH. TW had been paid for the delayed start and hoped for savings had not materialised. Mr King said that in January RBH wanted to start promptly although the reason never became clear from his evidence. This part of RBH's case was not made out.

From February 1987

162. I now return to the chronology relating to RBH's case on the timing and the quality of AA's drawings. The position in mid February 1987 was therefore that, as agreed much later and recorded in the minutes of a Design Team meeting held on 12 October 1989, attended inter alia by Mr Edwards of AA:

4.1.3 It was the view of all present that under the terms of the contract TWC were not entitled to receive co-ordinated drawings but that they had been advised, both before tender and after award of the contract, that they would be provided by way of further information.

AA stated that in their view, having been advised that co-ordinated drawings were to be issued, it was reasonable for TWC to await their receipt before commencing their own drawing programme."

In addition there was agreement between the experts (Mr Dix, Mr Stephen Edwards and Dr Arnold):

"a reasonably competent consulting engineer could anticipate commencing co-ordination drawings for level 1 first and would not need a contractor's programme to know this on a project such as this"

Thus co-ordination information could and should have been issued within three or four months, and thus, once the contract with TW was made, RBH would be obliged under clause 5.4 to provide TW with that information within that time, unless and until TW presented a programme which showed a longer period or periods. A specific application was not needed since the necessity and the time were clear. Thus the drawings were due from early May 1987, and, technically, even earlier in the case of level 1 which ought only to have taken six to seven weeks to issue.

163. At a meeting on 24 February 1987 TW confirmed that their revised programme "would take 3/4 weeks but should be available at the first site meeting" (item 11.1), which was fixed for 31 March 1987 (item 15.1). On 26 February 1987 WGI wrote to TW (with copies to PMI and AA, commenting on the Schedule of Information Requirements which had been produced on 30 January. It noted against Item 65: "To be issued in accordance with the Contractors' reasonable requirements". TW should therefore have had no doubt that its revised programme would have to set out its requirements in detail. From the evidence of Mr Edwards and Mr Tyler the letter followed up what WGI had been told in discussions with AA. That observation by WGI was followed by others (see the letter from PMI to WGI of 27 March 1987). At the site meeting on 31 March 1987 TW issued a programme but after discussion it was straightaway withdrawn. AA would nevertheless have had confirmation of when TW wanted the first co-ordination drawings. TW also issued a revised Schedule of Information Requirements, which was not withdrawn. That showed that details for the services on Level 1 were required by 6 April 1987. These were to be provided "as required". That was a sufficient request or application under the contract although there was no need for TW to make a request since the necessity for the information was apparent.
164. Although it may be the consequence of the time that has passed since these events, nonetheless one of the features of the history of this case is the absence of anything other than formal communications between RBH's consultants and between TW and the consultants. There is also little evidence of any of them really working together as a team. Thus one might have expected less formal meetings to obtain information that under the contract had to be provided in a certain or formal manner. So on 1 April 1987, PMI wrote to WGI:

"DESIGN REVIEW MEETINGS

"We discussed the reinstating of the above meetings on site and would like to confirm the suggestion we made that the first meeting will be held in the Project Office Conference Room on April 14th 1987 at 2.00 p.m.

"The purpose of the meeting will be as follows:

"a) To review and ensure that production information is being released in accordance with the Contractors requirements.

"b) To resolve any current design problems.

"c) To resolve any outstanding queries that the Contractor may have.

"At this stage the meetings are to be monthly until further notice and will provide an opportunity for the Team to meet to review the overall situation."

That was an obviously prudent move by PMI in order to see that the consultants were producing their drawings and other information to meet TW's needs. As suggested by PMI on 6 April 1987, on 7 April WGI wrote to TW about the lack of a programme:

"(c) Master Programme.

The issue of the Master Programme was discussed at the pre-contract meeting held on 24 February and its issue was promised for 31 March.

"Despite our requests for its issue in sufficient time to allow comment to be made at the site meeting, it was eventually issued in preliminary form on that day and immediately withdrawn. Whilst no precise period is stipulated in the contract conditions for the original issue, we consider it to be in the spirit of the contract for it to have been available in proper form by 31 March. Would you please deal with this as a matter of urgency."

In addition in another letter of 7 April PMI specifically (and quite pointedly) asked AA about its drawings:

"Regrettably the prolonged period you have required to report on these items causes disruption all round and this will continue until we are in the position to obtain firm client instructions.

Last week we issued further Client Enquiry Sheets No 19-29 inclusive. Can we please request you report quickly on any M & E additions as we again would like to clear these within the next ten days, i.e. 14 April, 1987.

It would assist greatly if you would schedule the items of design co-ordination and drawings that are outstanding from you and your programme for completing. We could then discuss this at the Design Review meeting on the 14th April, 1987."

165. These two letters show that PMI and WGI on this occasion discharged their respective functions, although Mr Adams rightly observed both that he would have preferred that it had been written somewhat earlier, and their objectives could not be achieved without an overall design programme against which PMI could monitor compliance by a consultant such as AA. TW was rightly pursued by WGI and AA by PMI in a pointed letter to which AA should have replied effectively. TW's response to WGI was to say that six weeks was a reasonable time to produce a programme. It sent a "corrected" preliminary programme for discussion (P01/B). It did not cover the sequence of M&E services installation activities, nor did it set out in detail TW's requirements for information. However it did require the M&E information to be provided by 4 May 1987. It indicated the start of M&E 1st fix to be 21 September 1987 and in that respect and others it effectively superseded the programme issued in February 1987. It was in my judgment adequate for the purposes of confirming the general anticipated timing and sequence for the release of information, such as the co-ordination drawings. Obviously it was not sufficient for the purposes of the programming requirements of the contract and I do not consider that TW then suggested that it was. It was however treated by Mr Hutchings in October 1989 (and confirmed in evidence) as sufficient for the purposes of clause 25 and 26 of the JCT conditions as a specific application by TW for the co-ordination drawings and in my judgment it was, taking account of the circumstances. Although it might be faulted in law as a specific application I have no doubt that it would have been regarded by an arbitrator as sufficient for the purposes of clauses 25 and 26, once its context was taken into account. It conveyed to WGI and AA the need for TW to be given by 4 May 1987 the co-ordination drawings (not that either were unaware of that need) and other information required for level 1. TW was pressed again at the first Design Review Meeting on 14 April 1987 for the "Master Programme and Network Analysis", "Separate Detailed Programme for M&E", "Short Term Programmes" and "Requirements regarding issue of drawings". The absence of these detailed programmes did not however affect the production of the co-ordination drawings since by that time everybody knew that the drawings for level 1, for example, would be needed some three to four months before the start of 1st fix, i.e. to use P01/B between 21 May and 21 June 1987.
166. It is also clear that, whatever might be the theory, no one in practice then made the production by AA of its drawing programme dependent on compliance by TW with the master programme required under the contractual provisions to which I have referred. In any event TW was purporting to comply with its obligations and although PMI and WGI were becoming restive about TW they did not see that AA should wait until TW had produced an effective programme. It is relevant that Mr Adams thought that PMI and WGI should not have waited. He said, when cross-examined by Mr Williamson for PMI:

"Q. Would you not also agree with me, in terms of the big picture, as it were, as you have just been referring to it, that it made it rather difficult for the project manager or the consultants to identify an overall programme, in the absence of a master programme from the contractor and an M&E programme from the contractor?

A. I accept that is the case is [?]. However, the consultants should have been working to their own programme. What is missing is to link that programme to Taylor Woodrow's. The absence of Taylor Woodrow's does not excuse the consultants from not having their own design programme.

Mr Adams countered the suggestion that a programme that had not been agreed between TW and AA would not be worth the paper that it was written: "Other than it would be a mechanism by which the project manager could establish how these drawings were progressing in the M&E consultant's office".

167. At the site meeting on 28 April 1987, TW said that an M&E programme would be available within two weeks. TW distributed a further Schedule of Information Required and various items were discussed. In PMI's report to RBH dated 6 May 1987 and at the Monthly Review meeting No 1 on 7 May 1987 PMI said that

"the Contractor through the Architect and ourselves, is being pressed to provide as a matter of urgency the network analysis of his planning, a detailed services programme and his needs for the working drawings of specialised subcontractors".

The minutes of the meeting record:

"Network analysis and detailed M & E programmes are now expected from the Contractor within the next 7 – 14 days.

Importance of early production of working drawings by specialist sub-contractors being stressed.

Report on drainage progress will be contained within next month's report.

Programme within report is a summary of the Contractor's construction programme.

PMI will produce overall programme including equipment and commissioning stages."

Later it was also noted:

"3.2.3 Variations

DHSS were concerned at the total of the list of anticipated variations with a view to setting these against the contingency sum.

(a) Client Changes

PMI explained that scheduled anticipated variations were items that had generally been raised sometime ago and information was now available on estimated costs. PMI confirmed that they had the Client's support to the 'no changes' ruling and that it was the aim to make any necessary changes in the immediate post contract period. The Design Team awaited instructions on how to proceed. DHSS stated that with this particular project there should be no changes and that in any case a change would be the subject of a separate approval. DHSS also reminded the meeting that non contingency items over £20,000 would require an application to increase the approved sum.

A schedule of proposed post contract changes should be included in the Monthly Financial Reporting."

The report also recorded that "alteration to drawings to comply with the bill of reduction amendments is proceeding satisfactorily". Mr Dix said that, at that stage had he been AA, he would have extremely worried that those drawings had not reached TW.

168. At the Design Review Meeting No 2 on 12 May 1987 delays were recorded about AA's issue of information.

"H.S.D.U. information now complete.

M&E drawings issued as Construction Drawings.

H.S.D.U. drawings issued. Level 1. Boiler House drawings issued.

Level 1. Mechanical Plant Room issued.

Level 1. Electrical drawings not issued and will not be issued until 22 May 1987 (Required 6 April 1987).

Level 1. High level pipework ducting – available very shortly (Required 6 April 1987)."

In my view, now that the HSDU information was complete, although there was a possible question over a riser duct and although Mr MacKenzie demurred, I consider that AA could then have got on and issued level 1, zone 4 co-ordination drawings. On 18 May 1987 Mr Wragg wrote to AA:

"The minutes of our Design Review Meeting No 2 will indicate that the issue of your information, both Mechanical and Electrical is in delay.

"In particular Level 1 electrics will now be some four weeks later than the date promised at Design Review Meeting No 1, and some seven weeks after the date when the Contractor requested information to commence being issued. There is a similar situation developing with the issue of mechanical information.

"Our letter of the 7th April 1987, did request your plan of operation and it would help if this was issued as we feel there is a great deal of co-ordinating work and reviewing of drawings to be done. It is obviously necessary to review your resourcing of the project to provide a consistent flow of information on programme.

"The Taymech requirements should be established more clearly than they are at the moment. It must be reasonable to assume that Level 2 Mechanical and Electrical drawings are now expected by them. If this is the case then a concerted effort will be needed to clear outstanding drawings, now that you have been able to clarify the situation for the Client and that Pathology can now be completed.

We would be pleased to meet and discuss the situation to ensure that there is no question of delays through lack of information."

It is therefore clear that at this late stage PMI had not got AA to produce any programme as it was still asking for it and that it thought, rightly, that AA was already late in providing its drawings. That was a strong letter (as it was put to Mr Teale) but PMI appear to have done very little (if anything) to follow up the letter that it had written six weeks earlier on 7 April or otherwise to pursue AA. Mr Edwards response was when the letter was put to him

Q….. So, Mr Edwards, it is perfectly clear in this letter to you, Mr Wragg is expressing concern that if a grip is not taken of the information flow to the contractor, delays might arise?

A. Yes, I think he is doing the good job as a project manager and chasing us all along. With regards to the electrical, I cannot say now why they were not done. I mean, you appreciate in April we issued all those drawings even those that were subject to change. I know on the electrical, two zones we had to completely redraw because of the boundary wall down there. I would probably argue that that was not going to cause the contractor a delay there, but John is doing the right job in geeing us up.

That reaction demonstrates Mr Edwards' complacency which should have led Mr Wragg to act and not merely to write. Mr Coleman thought that the situation was not properly under control and that "it had the potential to become serious". In my view Mr Coleman understated the position. Even so, on that view alone, I consider that a meeting should have been held with AA at which the "plan of operation" would be produced and PMI was again failing in its duty not to have obtained it. The letter of 18 May records the fact that a decision had by then been taken to get on with the pathology department on the basis that there would be no air-conditioning. The previous history has some memorable features (for example concerning predicted temperatures) and was at times quite complex. It is by no means clear that the decision could not have been taken earlier and if AA had been working to a proper programme I am sure that it would have assembled the information in time and sought a decision on the grounds that it was holding up the production of drawings. Accordingly I do not regard the apparent late decision as the reason why the drawings were late. The removal of air-conditioning for pathology cleared the way for RBH to authorise the redesign of the haematology department which had to be made at the insistence of a consultant who had required it in January. Evidently RBH could not resist the change even when it should have refused to make it as the design was supposedly frozen. This was an alteration which AA had to accommodate and had it been on time might have had certain consequences. As it was, AA was instructed to make the change on 26 May 1987 and AA produced the revised drawings by mid-June. I do not consider that much was involved, for the reasons given by Mr Dix.

169. A meeting was held on 21 May between AA and TW at which AA evidently agreed to issue preliminary co-ordinated drawings for level 1, zones 2, 3, 4, and 5 by 26 June. Before Mr Hammond left AA he made some notes summarising the events between September 1985 and September 1987. In them he recorded that in "May/June 1987 [a] programme for the issue of drawing to Taymech agreed and the first of Taymech's drawing issues dates issued. Programme for services issued together with overall programme which was reissued several times". They were sent by AA with a letter of 23 February 1988. When Mr Edwards-Stuart asked Mr Edwards about the entries, Mr Edwards was dismissive of the entry since he said, prompted by Mr Bartlett, they were written without benefit of the files. However, immediately after this entry, Mr Hammond concluded them by saying "the remainder is documented in the meeting notes of AA internal discussions held during September, October and November 1987" (documents few of which were disclosed by AA). In my view not only were the notes made not so long after the event that they can be discounted but they are consistent with other evidence of the meeting of 21 May. In addition the reference to the programme being issued several times must be a reference to the draft preliminary programme that was issued in early June. Mr Edwards played down the notes as they did not suit his version of the facts. However the significance of this meeting appears to have escaped both PMI and WGI since neither pursued it. This indicates yet again that PMI was not on top of the management of the project and looking after RBH's interests. As will appear AA intended not to issue definitive drawings. Instead they issued untraced drawings. The date was consistent with TW's current programme (P01/B) which showed the first fix to start in week 30 (21 September 1987). Finished drawings had therefore to be provided to TW by that date. Once again RBH's obligation under clause 5.4 did not need to be established by a specific application.
170. On 21 May 1987 PMI also wrote to WGI:

"PROGRAMMING AND ISSUE OF INFORMATION

"Although the Project does not yet have a Contractors Master Programme, we are pleased to see the activity on site to produce this.

"Taymech's Project Manager is now in residence and with the Taylor Woodrow's Planner and Co-ordinator, also on site, we now understand that the Master Programme could be available by the next site meeting on 2nd June 1987."

By the time of that meeting TW had supplied a preliminary M&E programme to WGI and PMI - on 29 May 1987. PMI's continuing concern about AA over the previous two months surfaced with a letter of 27 May 1987 in which Mr Teale at last called for a meeting with Mr Edwards. In his witness statement Mr Teale said that he arranged it with AA, WGI and [TW] so "we could discuss the areas of responsibility with regard to the drawings.

"71. [TW] said that the drawing information provided by AA at the meeting was General Arrangement Drawings. [TW] claimed that builders work drawings could not be prepared on an accurate basis without co-ordinated services information. As [TW] began to prepare these drawings in detail, he began to complain that the AA drawings showed insufficient information.

72. There was some confusion or disagreement as to the responsibility owed by AA and [TW] over the production of co-ordination drawings. I was less interested in determining contractual responsibility than simply trying to determine what information was outstanding, who was going to produce it and by what time limit. I believe that in the circumstances this pragmatic approach was the best way forward. I would try and co-ordinate the release of information with the services installation programme.

73. The situation was still very much controllable and I saw no reason if all parties co-operated why the M&E installation date could not be maintained. I was continually monitoring the information and drawings being produced by AA and how this was being co-ordinated with [TW]'s activities. I did not want to create a "blame culture" and I believed there was little point in doing so and any problems in respect of the flow of information between AA and [TW] could best be resolved by holding regular meetings. Neither AA nor [TW] objected to attending these meetings and, in fact, I believe that they found them useful and necessary."

Yet to hold a meeting with WGI and TW effectively disabled Mr Teale from confronting AA as PMI could not have held AA to account in front of TW (or even WGI). It allowed AA to lead PMI to believe that dates had been agreed with TW. Some difficulties had arisen since WGI's agreement did not cover matters which AA thought were its responsibility. However Mr Teale said that the letter dealt with the wider issue of co-ordination of services generally. Mr Tyler saw the letter and wrote a note on it that he wanted Mr Edwards to discuss it with him before replying. In turn this led to Mr Tylers's memorandum to Mr Edwards of 4 June, the tenor of which speaks for itself:

"Re: Room Loading Information

Further to our recent discussions I have investigated further the situation with regard to provision of room loading information to the contractor. I would also comment on Brian Teale's letter to you dated 27 May, and give my further views on this overall matter.

171. Discussing the situation with Gordon and Jim it does appear that the assumptions regarding St Georges were partly incorrect. It seems Watkins Gray similarly refused to produce room loading drawings and wall elevations which included location of engineering services outlets. It appears that after much wrangling Watkins Gray did provide certain information and also placed a young lady architect on site to provide the required information as the work proceeded. It seems some drawings were produced for complex areas by Watkins Gray, but by no means to the same extent as Powell Moya provided for Maidstone.
172. Gordon is having similar problems to ourselves on one or two of his jobs, but the Region's Works Officers are supporting the line that the architect should produce the information. Our problem is that we have no such support as PMI do not have the appropriate experience of controlling Health Service projects of this nature.
173. Referring to my memorandum to you dated 23 October 1986 which referred to the A.C.E. Guidance Note dated January 1981 and Appendix 'B' of the Supplementary Annexure, it is quite clear who is supposed to provide what information and also what the definition of the Consulting Engineers co-ordinating role is. The definition of co-ordination defined by the Department of Health is "the provision of information clearly showing the inter-relationship of two or more engineering systems and where appropriate, the physical or special relationship of the components of engineering systems to the remainder of the project". This is a perfectly clear definition and does not cover location of items within working areas. This is clearly the responsibility of the architect and under no circumstances should we be forced to undertake this responsibility. Location inter-relationships must be the responsibility of the architect as only they can determine what relationship they require between furniture, equipment, environmental terminals, and User outlets. This is endorsed and underlined in the final Draft of National Health Service comprehensive agreement which is a confirmation of what has hitherto always been the understanding of works professionals within the Regional Health Authorities. A copy of the relevant extracts from the comprehensive agreement is attached for your information.

Finally, if the Project Manager remains unsure about the architect's responsibilities, and/or Watkins Gray are still not prepared to co-operate, then I think we should suggest to the Project Manager that the matter be referred to the DHSS for their ruling. In this respect, they should refer to the final Draft of the comprehensive agreement and the Department's previous understandings of respective responsibilities of the various disciplines comprising the Design Team. They could also refer to the South West or South East Thames Regional Health Authorities Architects Department who should be willing to confirm their own previous rulings and views on this subject.

With regard to the Contractors, as previously mentioned to you, no one can expect them to provide this information as they are not in a position to carry out a location exercise without the architect's information and assistance. Nor should we air Design Team vagueness or disagreement in front of the contractor who must already be viewing the disarray and mismanagement of this project as a valuable contribution to the recovery of his losses on an alleged low tender.

I hope this information will assist you at your meeting with Brian Teale on 8 June and I would be grateful if you would let me know the outcome as soon as you can."

I have emphasised one sentence in particular. When Mr Tyler was asked about the mismanagement to which he referred he excluded TW, but not, it seems, RBH, who were to be blamed for a lack of rationalisation of the various consultancy agreements. This was odd first since they seem to me to be reasonably well put together and in any event the Project Procedures Document provided a practical solution. Secondly Mr Tyler then admitted that at that time he knew nothing of the terms of the commissions given to WGI and PMI and being reluctant to blame PMI was forced to admit that the statement was unjust. In the context of this paragraph and what TW was observing the only entity that could really be blamed was AA. Mr Edwards said that within AA memoranda were only used if there was something serious (but he could not explain the strange absence of memoranda in the disclosed documents). In my view AA by this time had realised the serious problems that it was creating for everybody. It is in my judgment a patent admission since at this stage the disarray was of AA's making. It made me wonder why RBH's case on the aspect of liability was being defended by AA.

174. At this stage Mr Tyler submitted to RBH another "Certificate of Readiness" with a letter of 28 May to PMI:

"….As discussed with Mr Edwards, the signed Certificate is subject to the programme of completion of outstanding information as agreed with your goodselves; this programme having been related to the general production information to be provided to the contractor in accordance with his current programme of works."

The Certificate read:

"CERTIFICATE OF READINESS TO PROCEED TO TENDER

The Board of Governors of the National Heart & Chest Hospitals	The Board of Governors of the National Heart & Chest Hospitals
SCHEME	National Heart & Chest Centre – Phase I

I certify that the revised tender documentation which takes into account the reduction to the work scope is consistent with and fully reflects the general production information to be provided to the Contractor."

Neither Mr Edwards nor Mr Tyler could recall the discussion referred to in Mr Tyler's letter. Although in the previous year an indemnity might have been provided by RBH to a consultant who was then not in a position to issue such a certificate, none was sought in 1987.

175. At the site meeting (No 3) on 2 June 1987, it was agreed that the building programme should be integrated with the M&E programme and that AA was to comment on the M&E programme as soon as possible:

"Master Programme

TWC will integrate their programme with the M& E programme and will then re-issue.

The network analysis will be discussed between TWC and PMI on 3 June.

Austen Associates will comment on the M&E programme as soon as possible.

TWC will produce short-term programmes covering a three month period by 30 June. These will be reviewed monthly."

TW also issued a further Information Schedule but the discussion did not relate to services.

176. On 4 June PMI sent AA Mr Woolven's comments on the M&E preliminary programme as a number of discrepancies had been found. The points were to be discussed at a meeting on 8 June. It does not appear that a meeting took place which was unfortunate since Mr Teale should then have established AA's programme of dates for the release of co-ordination drawings for at least level 1, especially as Mr Teale said he was then aware that AA was lacking in resources and in the production of information. Mr Dix correctly said in cross-examination that in considering whether AA discharged its duties professionally no account could be taken of fluctuations in workload:

"A. That is the everyday story of consulting engineering; that is what goes with the territory. That is part of the skill of being a consulting engineer; you have to go with these issues. You simply cannot turn round to the client and say, "I cannot deal with your issue today". It is the ebb and flow of workload, which is the normal professional control of the consulting engineer in the exercise of his duties.

Q. You agree that that sort of business can be very disrupting indeed for the engineer?

A. Oh, it is a challenge, without doubt. Always is. It goes to the nature of the work. Would we not just love a project where we start on it, work on it continuously and finish it, but life is just not like that.

Q. And it can be, in fact, very difficult to cope with, particularly at a busy time in the industry?

A. That is part and parcel of the job.

Q. You agree?

A. Yes, it is part and parcel of the job, on every job, every consulting engineering practice. It is normal."

In his statement Mr Tyler described how "by the autumn of 1987 the overall management of the project had deteriorated to an extent whereby the constant late information, changes, and lack of co-operation from [TW] had an impact on the morale of the AA staff. This was to the extent that the Associate in charge of the Mechanical element of the design work, David Hammond, resigned". Mr David Hammond became a partner in another firm. When asked why AA could not produce the co-ordination drawings for level 1 by mid-June, Mr Edwards said simply "Because of the workload". I infer that AA suffered from this at a much earlier stage than autumn 1987. In any event another opportunity was lost. In his evidence Mr Coleman thought that by June 1987 the provision of information to TW was "getting into the danger zone", and that Mr Teale should have taken it up with AA. Even Mr Teale acknowledged that by that time:

"there were difficulties in producing the information, and difficulties in the co-ordination area. There were difficulties with Taylor Woodrow. So one could say that, at this early stage, we were getting into some quite difficult water, yes.

Q. There was a need for a fairly firm grip to be taken on the provision of information?

A. There was, yes."

177. In early June AA was asked to include computer trunking. Although this was included on one of Mr Mackenzie's Progress Summary Charts he agreed that it was not necessary to defer the production and issue of the co-ordination drawings since there was room to add the trunking on the level 4 drawings. Indeed AA did not apparently do so until after the co-ordination drawings had been issued. Nothing therefore turns on this.
178. On 9 June Design Review Meeting 3 was held. The Minutes recorded: "M&E details to be issued by 26 June as agreed with [TW]. This requires positive confirmation". Mr Edwards could not remember much about meetings at this time. He thought that the single service drawings were to be issued by 26 June but not co-ordination drawings. The minutes are clearly a reference to the meeting on 21 May and Mr Edwards' lack of recollection demonstrated again that his evidence was largely a selective recitation of what he had read in the documents but about which he had either no knowledge or no recollection. I cannot believe that there was no reference to the issue of the co-ordination drawings. On 25 June 1987 TW sent a Design and Construction Query Document to AA stating that co-ordinated services drawings to all zones were awaited, plus any sections/elevations relevant to co-ordination. (Mr Edwards tried to play it down, somewhat unconvincingly; Mr Edgeley, who was called, had signed it.) By this time in response to an earlier query sheet TW had also been issued with a revised radiator schedule (occasioned in part by the change from Hudevad to Stelrad which had been made, but apparently incorrect) and had asked for confirmation that the pipes should go through a single hole in the slab. In mid July 1987 AA instructed TW that two holes were required. Apart from that change of mind, for which AA is responsible, I do not accept that the change in radiators caused AA any of the difficulties that Mr Tyler suggested (and which he found hard to justify).
179. At site meeting No 4 on 26 June 1987, TW reported that it anticipated issuing a fully co-ordinated building/M&E programme by the end of July. The Minutes recorded:

"4.2.1 e) Master Programme

TWC/Taymech anticipate the issue of a fully co-ordinated Building/M&E programme by the end of July.

The network analysis was discussed by TWC and PMI on 3 June. PMI to comment.

AA confirmed they had no comments on the M&E programme.

TWC will produce a short term programme each month in a form acceptable to PMI.

CONTRACTOR'S PROGRESS REPORT

TWC distributed copies of their report to 29 June. This indicates that, assessed against Programme Drg No. B364/P1 rev B, the contract is 4½ weeks behind programme. It was confirmed that it was TWC's intention to complete on time, bearing in mind the current situation. TWC are currently reviewing the situation and the steps required to redress the present position.

…

AA

AA had no comment at this stage but agreed to review the procedures for the issue of information since TW have been receiving part information in some cases."

The minutes refer to a network analysis which PMI had prepared. Mr Hutchings was certain that he did not see it and WGI's files had no record of it being sent by PMI on 9 July. It does not thereafter feature very much so I conclude that it was not used or not kept up to date or both. Furthermore in the light of Mr Hutchings' evidence and the absence of any reference to it by WGI I conclude WGI did not receive it or did not find it to be of any use. According to a PMI report for June it then contained a "free float time of at least nine weeks" but it is not at all clear how it was arrived at or whether it was sound. As Mr Edwards-Stuart demonstrated with Mr Miers the programme did not deal with commissioning, one of the last activities so I do not accept that what we know of PMI's work can be made to be relevant. It may be that PMI projected a float of that order. In a report on tenders in 1986 TW was said to be aiming for "building completion" at week 117 with "hand over" at week 125. This could have justified PMI's own estimate. However it remained unclear to me whether the gap was a true float or whether it would be occupied by commissioning etc prior to hand over. Mr Miers also accepted that without an analysis of how the subsequent programmes developed and were changed, one could not know to what extent any such float survived. In my view no float was or could therefore be established. Its existence was speculation and thus could not provide a proper basis for anything other than a tentative and equally speculative opinion.

180. On 29 June 1987 AA wrote to WGI, cc PMI, to confirm that they had no comments on the services programme issued by TW. In view of the discussions earlier in the year and as a matter of common sense this and the minutes must be treated as an implicit acceptance by AA of an obligation to meet it. Nevertheless on 3 July (not 26 June) AA issued only preliminary drawings:

"Further to our meeting held on 30 June 1987, we enclose, for your information, a preliminary (i.e. untraced) copy of drawings numbered 668.1/C/1H/10 and 668.1/C/1H/03. These drawings show the co-ordination for Level 1, Area 3. If there are any problems, please do not hesitate to contact us."

The same happened on 8 July 1987, when AA issued the first set of co-ordination drawings for Level 1, Area 4, "as previously agreed". They were followed on 14 July, yet again, by similar preliminary co-ordination drawings for level 1, zone 5. That was the best that AA could then do and it shows what a parlous state it was in. Not surprisingly PMI wrote to AA on 13 July 1987 a fairly sharp letter expressing concern:

"We are in receipt of your letter dated 8 July 1987, to Taymech, enclosing preliminary co-ordinated drawings for level 1 High Level.

We are concerned that these are preliminary at this stage bearing in mind our need for overall builders work drawings required from the Contractor for this level. We are also concerned with the contents/query document WO84/44.

Can you please forward as promised the agreed dates for issue of information to Taylor Woodrow which perhaps will help to reduce our concern on the overall situation of co-ordination."

Mr Edwards could not recall whether dates had then been agreed or had still to be agreed. In my view it was the latter since if they had been agreed PMI would have been told of them straightaway. I was referred to the transcript of Day 19 of an earlier trial (4 December 2000) when Mr Edwards seemed "to remember now that there was an agreement that they would have preliminaries on a certain date and the pukka drawings soon after." No doubt TW was able to make some use of the drawings but in my view it would have been disingenuous and would have smacked of desperation to have said to me that drawings designated as preliminary drawings were as good as "pukka drawings". PMI submitted that AA's actions showed that even if it had chased them more vigorously it would have had no effect. This point would have had some force if PMI had picked up AA's intentions. Of more consequence is the later treatment and acceptance of the dates when the definitive drawings were issued as the effective date for assessing extensions of time due to TW, e.g. 14 August for level 1, over six weeks after the time that TW was expecting them and some eight weeks after the time when AA was to have produced them.

181. At the Design Review Meeting (No 4) held on 16 July 1987 it was recorded that all drawings for Level 2 had been issued except control drawings, some pipework drawings, and co-ordination drawings. This again referred to preliminary drawings as in 1989 WGI took 7 September 1987 (zones 3 and 4) and 18 September 1987 (zones 1, 2, 5, 6). AA then wrote to PMI on 24 July 1987 enclosing a "programme outline for the release of information agreed with Taymech". No copy of the programme can now be found but it seems that it was not of any use. A month after its letter of 13 July PMI wrote to AA on 10 August 1987 referring to the outline programme, and stating:

"This was discussed at our meeting on the 31st July 1987 and at the Design Review Meeting on the 4th August 1987 and it was agreed that this was an inadequate document.

"We confirm that you will establish in detail the information release date required by Taymech, together with the dates that they intend to issue working drawings for you and other members of the Design Team to comment on. This now requires completing as a matter of urgency."

182. On 11 August 1987 an important meeting took place at PMI's prompting. By that time even PMI's patience with AA had run out. Nevertheless had PMI applied itself and complied with clause 11(f) of its retainer a meeting of this kind could and should have been held much earlier. It could have been held shortly after PMI's letter of 7 April; it ought to have been held not later than mid May, when PMI wrote again on 18 May. It was not even then attended by PMI. Mr Edwards and Mr Hammond of AA met Mr Hall and Mr Walker of TW and gave them a schedule of dates which AA were to meet:

ITEM	DESCRIPTION	ACTION	ACTION	ACTION
1.	Austin Associates stated that the services should be installed to the co-ordination drawings.	Taymech	Taymech	Taymech
2. 3.	Austin Associates shall cloud the individual services layout where there are minor changes to these drawings compared to the co-ordination drawings. Austin Associates shall change the individual services layouts where there are significant alterations between these and the co-ordination drawings.	Austin Associates Austin Associates	Austin Associates Austin Associates	Austin Associates Austin Associates
4.	The following programme was agreed by both Taymech and Austin Associates for the issue of co-ordination drawings to enable Taymech to produce their installation drawings prior to Taymech's start on site dates.	Taymech/Genevers/ Austin Associates	Taymech/Genevers/ Austin Associates	Taymech/Genevers/ Austin Associates
	Level	Taymech Start-on-Site	Co-ordination Drgs. Issued	Issue of Genevers Invert Drgs. To A.A.
	1	5/10/87	This Week	-
	2	16/11/87	07/09/87	12/08/87
	3	04/01/88	12/10/87	28/08/87
	4	08/02/88	23/11/87	04/10/87
	5	14/03/88	04/01/88	13/11/87
	6	25/04/88	08/02/88	18/12/87
5.	Invert level drawings to be issued to Taymech with co-ordination drawings, but to be issued to Austin Associates as above programme to provide Austin Associates with information for co-ordination.	Genever/- Austin Associates	Genever/- Austin Associates	Genever/- Austin Associates
6.	At the site meeting on 28 July 1987, it was agreed that these drawings would be issued starting that week. This has not happened but these drawings shall be issued in line with the above programme.	Genever/ Austin Associates	Genever/ Austin Associates	Genever/ Austin Associates
7.	Other Outstanding Information
	(a) Pipework Level 2 (revised) – to be issued with co-ordination drawings for Level 2, i.e. 07.09.87.	Austin Associates	Austin Associates	Austin Associates
	(b) Control drawings – to be issued by 30.10.87.	Austin Associates	Austin Associates	Austin Associates
	(c) Level 6 drawings – to be issued by 27.11.87.	Austin Associates	Austin Associates	Austin Associates
	(d) Schedules (equipment) – Austin Associates to issue this week to Taymech a list of those schedules that have to be updated, then Taymech shall give dates as to when revised schedules are required.	Austin Associates/Taymech	Austin Associates/Taymech	Austin Associates/Taymech
	(e) All revised electrical drawings to be issued by 30.09.87.	Austin Associates	Austin Associates	Austin Associates
8.	Taymech shall reassess the issue of their drawings after they have received Austin Associates' drawing register. Austin Associates to issue drawing register on 12.08.87.	Taymech Austin Associates	Taymech Austin Associates	Taymech Austin Associates
9.	Taymech requested revised kitchen equipment schedule. Austin Associates to chase Northcroft Neighbour and Nicholson for price.	Austin Associates	Austin Associates	Austin Associates
10.	Taymech requested setting-out position of equipment etc. Austin Associates had previously referred them to Watkins Gray International but Watkins Gray International have not issued anything.	Watkins Gray International	Watkins Gray International	Watkins Gray International
11.	Taymech requested a current Watkins Gray International drawing register.	Watkins Gray International	Watkins Gray International	Watkins Gray International
12.	Taymech expressed concern that Watkins Gray International radiator setting-out details did not work in many instances and although Watkins Gray International had held several meetings to discuss the problem, no confirmation of these discussions or alterations to the setting-out details have yet been received.	Watkins Gray International	Watkins Gray International	Watkins Gray International
13.	Taymech stated that the issue of the Design Team comments on their Level 2 builders work drawing did cause some confusion. Austin Associates stated that the Design Team had agreed to meet, discuss and co-ordinate their comments and following this meeting issue one collective drawing back to Taymech in co-ordinating all the Design Team comments.	Watkins Gray International/ Clark Nicholls Marcel/Austin Associates	Watkins Gray International/ Clark Nicholls Marcel/Austin Associates	Watkins Gray International/ Clark Nicholls Marcel/Austin Associates
	Taymech issued a programme giving dates for the builders work drawings to be issued, commented on, modified and issued for construction.
	Austin Associates stated that as far as they were concerned the programme was acceptable, (copy attached).
14.	In view of the drawing programme (item 4 above) Taymech are now in a position to provide a schedule of those drawings to be presented to the Design Team, for comment, subject to the associated Architect's drawings being available.	Taymech	Taymech	Taymech

The minutes were sent to everybody including Genever and Partners. On 12 August 1987, TW issued Construction Programme P01/C. The programme showed the same dates for commencement of 1st fix by Taymech as had been established at the meeting on 11 August. The only "info" requirement noted was for level 1. AA wrote to WGI on 17 August to say that it had no comments to make on this programme. This programme ought of course to have been issued months earlier. The periods agreed from the time when TW was to get the drawings had to cover the production and approval of TW's installation drawings, i.e.

Level	TW start on site	Dates agreed on 11.8.87	Period
1	05.10.87	14.08.87	8 weeks
2	16.11.87	07.09.87	10 weeks
3	04.01.88	12.10.87	12 weeks
4	08.02.88	23.11.87	11 weeks
5	14.03.88	04.01.88	10 weeks
6	25.04.88	08.02.88	11 weeks

On 14 August 1987 AA issued the last of the drawings for level 1 – that for zone 2 (the preliminary version had been issued a few days earlier). AA sought to explain its late issue by reference to a decision taken in mid July to drop the idea for a new aeration room for the HSDU. However until that time, although there had been discussions about what was needed under HTM 10, the room had for planning purposes been included in the design approved at the beginning of April and shown on AA's mechanical layout drawings which covered the redesign. There is however no evidence either RBH or PMI told or expected AA not to issue any co-ordination drawings simply because there might be a change in design or that AA did not do so on that ground - see Mr Tyler's witness statements. Mr Tyler's 4th witness statement provides a very full and clear account of the steps that AA took from which it is clear no assumptions could be made that an aeration room would be included. I cannot therefore see that these events provide AA with a defence.

183. When the drawings began to arrive from AA TW considered that they were not those which it was entitled to receive, as Mr Hall (who had been present at the meeting) fully explained. In summary Mr Hall said that because of the quality of the drawings, "the question of whether we had sufficient time to produce and receive approval for our working drawings prior to the programmed commencement dates subsequently became academic." Mr Drummy concurred with this in his witness statement. On 18 August TW submitted a progress report. It was 3½ weeks behind programme (using P01/B). It said that it intended to make this up by the end of the year.
184. Was there agreement at the meeting on 11 August 1987? TW did not write back to say that the programme set out under para 4 was not agreed and its letter of 12 August is consistent with an agreement. On the other hand TW might not have met the dates by which it was to start even if it had the requisite drawings. There was certainly agreement on the part of AA that the drawings would be produced on time. That is how it appeared to Mr Craske at a later stage. AA did not tell TW that there might be difficulties, e.g. because of the invert levels – see later. In my view Mr Hall's recollection was understandably somewhat coloured. I am sure that TW did agree to meet the dates set out. However that agreement was dependent on AA providing drawings that could immediately be worked to. Mr Hall said in his evidence:

"…. Nine weeks was the bare minimum it would have been to produce; it did not allow any tolerance. It did not allow for any further approval stage if we produced working drawings and they went to the consultants for approval. It assumed everything was perfect; that the information presented to us was perfect, and that our drawings contained no mistakes when they went to Austens. There was no leeway for any further alterations to those drawings and any resubmittal. So you are talking about a fair balance.

Furthermore, it did not give us any lead in time on things like ductwork. After our installation drawings had been approved the ductwork subcontractor had to prepare his installation drawings and fabrication drawings which then had to be submitted for approval. You have got the same situation, in an ideal world it might have taken four weeks; the chances are it would have taken about six weeks. So instead of the nine weeks that is conveniently put forward at that time, you are talking more in the region of maybe 18 to 20 weeks as being a more factual requirement.

Now, what we did say at that meeting, the agreement was that we would make every endeavour to meet our start programme on site. To this end we had a ductwork draughtsman on site working alongside our drawings, producing fabrication drawings. Now this was very risky, you know. He was actually taking information from our drawings, which were as yet unapproved or commented on, to produce his fabrication works. In fact, he produced his ductwork on that basis.

So we were talking extraordinary measures to try and meet this nine weeks that was thrown at us, and the way that my answers come across in the previous cross-examination does not bring this out. It makes it look as if we were always in agreement with these dates and we were happy with them. We were far from happy with them."

185. That extract sums up graphically and accurately the basis of the agreement which Mr Edwards and Mr Hammond knew. There is therefore no question of any estoppel arising, as suggested by AA, by which TW could not have complained of not getting the drawings earlier. It was certainly entitled to them; it had to accept what AA offered, as Mr Hutchings said. On its part TW could only set out what it intended to do as it had not yet got the drawings. Mr Drummy, for example, said, when cross-examined, that if the drawings had been of the required quality he thought that the dates would have been met. In the same way Mr Edwards summarised AA's position when cross-examined:

"Q. …..AA were moving heaven and earth to get the drawings out?

A. Yes.

Q. So the difficulty was not in identifying what you had to do or when you had to do it?

A. No.

Q. But in actually getting it done?

A. Yes.

Q. Is that fair?

A. We knew we had to do it and we [were] pushing for it."

However AA evidently suffered from lack of resources and good management (as did TW) since it was not able to provide drawings of the required quality by the dates required. Mr Edwards said AA had the resources ("we probably had between 17 and 20 people"), but that assertion was not supported. There was a general shortage of good staff as Mr Hall's evidence showed. I have referred to the lack of morale within AA. In any event it is not possible to accept Mr Edwards' assertion that AA was unable to do better to produce drawings any quicker. First, AA led everyone to believe in February and March it could and would get the drawings done on time. Secondly, AA has no records against which the credibility of Mr Edwards may be judged. AA was being paid a significant fee (3%) to produce the drawings. I was left with the distinct impression from AA's evidence that it was not going to risk cost exceeding revenue. As Mr Adams said in cross-examination:

"It depends on the pressures on that particular consultant. He may have two major projects and they go at the same time. In that case he who shouts the loudest gets the drawings. That is common practice within our industry, I am afraid.

Q. You are not aware, are you, of anything that you have seen that suggests that Mr Edwards is wrong in saying that a programme would have made very little difference to you?

A. I am in no position to comment on that. That is Mr Edwards' view."

Thirdly, Mr Edwards' own evidence is itself of no value. He showed himself to be partisan and determined to stick to his carefully prepared script. In my judgment had AA been taken properly to task at any time from March a feasible programme would have been devised which would have been implemented by both AA and TW.

186. Nevertheless by 24 August TW had been through the Level 1 drawings and was concerned about their quality. It wrote a long report "on the Status and Problems Concerning the Preparation of Building Services Drawings at 24.8.87" . It included

"A BUILDERS WORK

1. 20/8/87 Genevers issued further comments on level 2 slab drawings which will involve further changes to drawing and re-issue.

2. We await information on gullies in plantroom to add the relevant builders work holes.

3. 21/8/87 No comments available on level 3 slab drawings. Programme B/364 BWP/1 calls for comments in sufficient time for Taymech to amend and re-issue by 24/8/87. Holds on this drawing still awaiting information from Watkins Gray.

4. No comments available on B/W drawings detailing holes through walls and beams for levels 1 and 2 issued as below:-

Level 1 (WO84/BW/07) 15/7/87

Level 2 (WO84/BW/05) 7/7/87

NB:

The above drawings were produced without co-ordinated services drawings being available.

5. Level 3 – Holes through walls and beams drawing on board and will be available to meet programme. The drawing is being produced without co-ordinated services information being available.

…..

C CO-ORDINATION

All level 1 co-ordinated services drawings received from Consultant to enable Taymech to produce working drawings.

Taymech have identified many areas where major clashes occur, query sheets attached.

The time involved in identifying the problems and then the Consultant resolving the same effectively delays the information flow agreed during the meeting with the Consultants of 12^th August 1987. This will have a "knock-on" affect on Taymech producing working drawings which could affect the programmed start date.

Outstanding information affecting co-ordinated services working drawings:-

1. Revised ceiling layouts showing new levels as advised by A.A.

2. Ceiling layouts indicating positions of all ceiling mounted equipment i.e. grilles, diffusers, lighting etc.

3. Equipment positions i.e. fume cupboards, safety cabinets, sterilisers, laboratory furniture etc, with tie down dimensions."

187. Thus within a fortnight the agreement of 11 August was unravelling and within a short time and by the end of that month arguments were well in train between TW and AA about the content of the co-ordination drawings. TW's problems were also discussed at Design Review Meeting 6 on 1 September and were the subject of a letter from WGI of 2 September. In September 1987 PMI became concerned about AA's performance in relation to what had been agreed at the meeting on 11 August and took it up with AA in a letter of 3 September and with WGI in a letter of 9 September. This led to a "Review of M&E Construction Information Meeting" on 14 September between PMI, WGI, AA and TW. TW submitted a statement of its position beforehand:

"1. PREAMBLE PRIOR TO TAYMECH SITE ESTABLISHMENT

(a) Meeting held at A.A. offices 26 February. At the meeting A.A. informed Taymech they were producing full co-ordinated M & E drawings, also holes 150 x 150 had been detailed by A.A. in conjunction with C.N.M.; Taymech were to verify these holes and set out holes below 150 x 150.

No official minutes of this meeting were issued.

(b) Site meeting 31 March (item 1.5 11 & 12) states that Taymech must produce builder's work details in time to meet T.W.C. construction dates.

(c) General issue of "For Construction" drawings issued under A.A. draft instruction M1 dated 3 April issued to W.G.I. These drawings received by Taymech 13 April.

(d) Plumbing drawings levels 1 & 2 only collected from site 14 April. Only level 1 invert levels indicated. Levels 3 to 6 issued 16 April.

(e) T.W.C. preliminary programme T.W.C./B364/P1 Rev. B circulated prior to 28 April site meeting. Programme indicates that construction details for 1^st and 2^nd fix M & E installation required by 2 May.

(f) Taymech initial site team moved to site 18 May. Site team included J. Hanning, draughtsman.

(g) Trainee Junior Engineer/Draughtsman, Stephen Kane, arrived site 1 June.

Draughtsman, D Dickenson arrived site 15 June.

Draughtsman, S Maclenahn arrived site 20 July.

188. CO-ORDINATED DRAWINGS/WORKING DRAWINGS

(a) At meeting on site 21 May with A.A. it was indicated that preliminary co-ordinated drawings level 1 zones 2, 3, 4, & 5 would be issued by 28 June (no minutes).

(b) At meeting on site 30 June with A.A. it was indicated that co-ordinated drawings would be issued as follows:-

Level 1	Date	Preliminary Actual	For Construction
Area 1 & 6	Issued
3	3 July	3 July/7 August	19 August
4	8 July	13 July	"
5	10 July	16 July/7 August	"
2	?	8 August	"
Level 2
Area 3 & 4	To be checked		8 September
2 & 5	In production
1 & 6	?
Level 3
Area 1 to 6	Not yet commenced

(c) D & C WO84/61 dated 24 July raised first co-ordination query reference drawing 668.1/C/1H/04.

(d) D & C WO84/66 29 July raised query reference drawing 668.1/C/1H/04.

(e) Taymech letter 31.07.87 request latest reissued drawing level 1 zone 4 drawing to reflect latest architectural changes.

(f) Drawings 668.1/D/1/2/3/4 issued 7 August amended for co-ordination issue.

(g) Co-ordination query documents raised 4^th, 5^th and 11^th August. Level 1 Zones 3 & 4.

(h) Meeting held with A.A. on site 12 August to discuss co-ordination of working drawings and agreed programme of co-ordination issues. This was based on the premise that Taymech required 10 No. working weeks for two draughtsmen to produce line and level working drawings.

(i) Co-ordination query documents raised 14, 18, 20 & 25 August. Level 1 Zones 3 & 4.

(j) Site meeting 25 August Taymech tabled latest status report related to the preparation of building services drawings.

(k) Co-ordination query documents raised 26 and 27 August, Level 1 Zones 3 & 4.

(l) A.A. drawing register received 20 August.

(m) A.A. Q.A. Engineer issues Taymech with list of drawings that latest revisions have not been received.

(n) T.W.C. letter 28 August to W.G.I. informs of difficulties in producing working drawings and indicates our concern with the production of drawings to meet construction programme.

(o) T.W.C. 4 September letter to A.A. again states latest position.

(p) Taymech letters 4 & 7 September informs A.A. of latest drawing revisions not in our possession.

(q) Meeting held 8 September on site with A.A. to discuss latest co-ordination problems.

(r) Taymech informed by A.A. 9 September that full time A.A. co-ordination draughtsman will now be permanently site-based. A.A. Electrical & Plumbing engineers will also visit site twice weekly to resolve engineering and co-ordination problems that might exist.

The latest position regarding the production of working drawings for level 1 zones 3 & 4 is as follows:-

Zone 3 – plan and sections ready for tracing by 19 September.

Zone 4 – plan and sections ready for tracing by approximately 26 September.

189. OUTSTANDING INFORMATION

(a) The following Q & A queries are outstanding 88 to 102 and 105 to 110.

(b) Revised kitchen equipment schedule.

(c) Setting out details of equipment.

(d) Laboratory equipment schedule.

(e) Reflected ceiling plans.

(f) Line and level on co-ordination drawings and sizes."

Thus, as para 3(r) records, TW had a meeting with AA at which AA agreed to base a co-ordination draughtsman permanently on site and that AA's electrical and plumbing engineers would also visit the site twice a week to resolve any engineering and co-ordination problems that might exist. Mr MacDonald was sent by AA to work alongside Mr Honey of TW in order to resolve the position of services in plan and level ("line and level"). Mr Honey was an experienced co-ordinator. It was suggested that had he arrived earlier TW might have got on better. I do not accept that submission as there is no justification for it either in the contemporary records or in the evidence. TW was then dependent on AA and, despite shortcomings elsewhere, it could not have made better progress on the installation drawings.

190. AA's drawings for the other levels reached TW as follows:

3. 20 October to 13 November 1987

4. 23 November 1987 to 6 January 1988

5. 4 January to 15 January 1988

6. 15 January to 8 February 1988.

The dates agreed on 11 August were therefore not met in full. The drawings issued were not always usable by TW for its purposes for reasons which I shall consider. In my judgment AA ought to have produced the drawings by mid June onwards at the latest.

WGI and Timing

191. Now that the information flow of drawings is under way (albeit not smoothly) it is at this point convenient to consider RBH's case against WGI on timing. In part it depends on a reading of WGI's duties which is not in my view correct. In its final submissions RBH said that its case "can be stated in a sentence. There being no relevant programme from TW, WGI failed (probably because they did not ask) to elicit from TW dates by which TW required the first co-ordination drawings, or to find out from AA on what date (or dates) they AA proposed to issue these drawings so that it could be agreed with TW." The submissions go on to point out that WGI did nothing. That is true (or basically true, for present purposes). WGI did nothing (or hardly anything) because it was not its responsibility to chase TW (or AA) for the production of programmes except at the behest of PMI. Only WGI had powers under the contract with TW but in reality TW had to recognise PMI. Unless WGI failed to heed PMI's requests (which it did not) it did not fail to exercise reasonable care and skill in the performance of its obligations under the contract since they had de facto been transferred to PMI by the latter's appointment and by the Project Procedures document. Its obligations to RBH in respect of the production of programmes by itself, TW or others no longer subsisted once PMI had been appointed to which WGI became answerable. It is clear from the evidence of Mr Hutchings that WGI reasonably thought that PMI had taken over. RBH moved a little from that "one line" approach to another short point, namely that WGI could not avoid responsibility for leaving programming to PMI, even though it let it down. The answer is that it was not WGI that left PMI to accept responsibility for programming, but RBH, by appointing PMI over WGI, and by establishing the Project Procedures that clearly defined, or, rather, restated the respective roles of both after PMI's appointment.
192. WGI obviously was involved in the programming of design information since it had to take care to see that the other consultants' work came forward at a time which would enable the integration of the relevant designs. The sequence by which grilles were located in the suspended ceilings provided a good illustration of integration (see elsewhere). In my view WGI did everything reasonably possible to urge AA to produce its co-ordination drawings and requirements on time for that purpose. In addition I do not consider that even if WGI had done more it would have made any real difference to AA's performance. Only PMI had the "clout" to do so, once RBH had appointed it as its primary representative. PMI might have convened meetings with the senior or other partners of AA to get to the bottom of AA's dilatory performance (as it did in a modest way when TW was seen to be suffering from the quality of AA's drawings), but it did not do so. In my judgment RBH's case against WGI fails. This conclusion is not at variance with the experts' agreements since they were left to "the Court to decide to what extend the role of PMI as Project Managers reduced WGI's responsibility, to agree with AA an acceptable programme for the provision of services co-ordination drawings required by the contractor".

PMI and Timing

193. RBH's case can be summarised in one of its answers to a request for particulars from PMI:

"PMI should have agreed with Austin Associates, Taylor Woodrow and WGI, a programme for the provision of, inter alia, co-ordination drawings to Taylor Woodrow and established that Austin Associates and Taylor Woodrow were ad idem as to what was to be provided and when. PMI should then have reviewed regularly the progress of Austin Associates in producing and providing co-ordination drawings, identifying any potential delay or shortcoming on Austin Associates' part so as to ensure the timely and adequate provision of co-ordinated drawings by Austin Associates. This should have been done throughout 1987. In essence, PMI should have complied with paragraph 4.2 of PMI's Procedure Document dated the 22 May 1987 ("the Procedure Document"), which provided:

"The Senior Project Manager of PMI with the assistance of his Chief Planning Engineer will monitor the design process to ensure that the flow of construction information meets the requirements of the Contractor."

PMI should also have complied with paragraph 8.3 of the Procedure Document, which provided:

"The Main Contractor will prepare a schedule of Information Requirements covering the total project. In accordance with the Contract Conditions a fully detailed Information Requirement Schedule will be issued at each Site Meeting covering the forthcoming period highlighting information containing long delivery items. This information will be co-ordinated and monitored by PMI".

I have already made it clear that it is not an answer to point to TW's failure to produce proper programmes since the basic sequence and timing was clear. TW's failure did not lead to work grinding to a halt. PMI continued to monitor TW's work and by holding regular meetings were able to obtain enough information about TW's short term programmes. PMI's obligation under clause 11(f) to "oversee the preparation of design programmes for all elements of the project within the master programme…" was not dependent on the existence of TW's programme. PMI had not established a programme for the production of AA's drawings before TW started on site. There had already been the major deviation from Capricode procedures in that TW had begun when the preparation of co-ordination drawings had barely started. It was incumbent on PMI to take every step available to it to see that that risk paid off. In my judgment it ought then to have convened meetings to obtain the programme from AA and to get dates agreed dates but it did not do so. It was left for TW to provide the dates until it was too late. In my judgment PMI did not do enough to obtain such a programme from AA. Mr Teale was far too trusting. By early May PMI was being fobbed off by AA. PMI ought then in conjunction with Mr Blair to have called the senior partners of AA to a meeting and had a showdown. According to Mr Hutchings (and to Mr Teale) that would have worked. Mr Hutchings said:

"Q. …But usually, I imagine, Mr Hutchings, in your experience, once correspondence -- or once it gets taken into the hands of senior partners, the problem normally resolves itself?

A. Yes.

Q. Because inevitably, whilst, as it were, requests at site meeting level might get fobbed off, stern letters, senior partner to senior partner, usually get taken pretty seriously?

A. That is my experience, certainly."

Thus Mr Teale was wrong to think that the only effective sanction was the "stick" of termination. Mr Adams put it very well during the course of his cross-examination by Mr Williamson:

"…Exactly, my Lord, and I think that is my suggestion; that notwithstanding what Taylor Woodrow were or were not saying, the project manager should have been marshalling the design team to produce a programme and get the drawings out as quickly as they can.

MR WILLIAMSON: On the basis of the documents that we have looked at together, Mr Adams, I would suggest that is exactly what they were doing?

A. I see no design programme; I see no co-ordination of that design programme. I do accept that I have not mentioned the pressure which PMI have quite correctly placed on Taylor Woodrow and AA. But the end product is that six months into construction we do not have the agreed design programme that will satisfy Taylor Woodrow's information requirements in the long-term.

JUDGE LLOYD: I mean, we have not seen, if I see things correctly from your point of view, a large round table meeting to confront people with their responsibilities?

A. Correct. There have been monthly design meetings; there has been one letter a month where the file has been reactivated; but the face-to-face meeting which you suggest does not appear to have taken place."

PMI did not pursue the request that it made to AA in its letter of 7 April 1987 for a programme for the release of the outstanding design information. Had it done so I am sure that the position would have been rectified and dates agreed between TW and AA. Even as late as June Mr Teale said: "The situation was still very much controllable and I saw no reason if all parties co-operated why the M&E installation date could not be maintained". PMI did no more than write a further letter of 18 May 1987, which was again not followed up. Thereafter the position was no longer "controllable". Had PMI taken AA to task, such as by contact with a senior partner then in my judgment TW would probably have got the drawings much earlier and in time to avoid the delays that it experienced. Accordingly I conclude that PMI was in breach of its obligation under its retainer to oversee the preparation of AA's design programme and AA's administration of its part of the construction contract and that but for such a breach AA's drawings would have reached TW in time.

Further Events

194. Thereafter M&E Review Meetings were held regularly. At Site Meeting 7, on 22 September 1987 TW registered its concern in relation to M&E information. TW was now about 4 weeks late, but submitted a 3 month target programme to show recovery by Christmas.
195. On 5 October TW formally indicated that it had a claim in relation to the quality of the co-ordination drawings. AA did not deliver the co-ordination drawings for Level 3 on 12 October as agreed. They were issued between 20 October and 13 November. On 19 October TW wrote to WGI to complain about AA's failure to comply with "…the due date of 12 October…". Nevertheless TW appeared not to have suffered any further delay as on 20 October it reported that it was still four weeks behind programme. TW then wrote to PMI on 29 October about the time being taken to "verify and resolve" AA's co-ordinated drawings.
196. TW considered that some at least of its difficulties might be overcome by using CAD. Taymech's own computer was not available as it was required for other work within the Taylor Woodrow Group. TW therefore turned to WOCAD in October 1987 – see its letter of 15 October which required them to make use of a long list of relevant information. In a later letter of 10 November 1987 TW gave WOCAD instructions about producing the drawings with clashes highlighted but to resolve minor clashes and to use additional AA drawings. Mr Hall maintained that it was not needed to overcome a shortage of draughtsmen but to enable installation drawings for the whole of a floor to be harmonised. There was probably a bit of both. Undoubtedly CAD would have helped in the manner suggested by TW but TW was also short of personnel. I discount AA's submission that since, as result of the division of work between Mr Hall and Mr Edgeley, Mr Hall was not involved in instructing WOCAD or in dealing with them his evidence was not material (it was in any event in my judgment substantially confirmed by other witnesses with first-hand knowledge). Like most managers in such a position he provided a useful view and his witness statement set out his limitations. On 20 November Mr Tyler wrote to Mr Massey in the course of which he said

"….Bruce Walker at the meeting held on 13^th November …..categorically assured the meeting that by adopting the CAD procedure he could recover the time lost in the production of the joint venture installation drawings for the engineering services, and re-establish the overall programme required target dates. This you have correctly recorded in the minutes of meeting no. 7 under item 3.1. There could have been no misunderstanding because you will recall that I myself demanded a clear statement from the joint venture representative confirming that his proposals to use the CAD avenue of drawing production would restore the programme target dates. He made the clear statement that this would be the case."

Mr Tyler repeated that view in a letter to TW of 26 November. Since TW could always have hired more agency staff I conclude that it thought that the additional costs that it was now bound to incur might be better used to engage a sub-contractor who might do better than a clutch of agency staff.

197. At a site meeting on 13 November (No 7). TW confirmed that it had chosen to use a CAD process. A schedule of dates was agreed for all zones on each level:

Level	Date CAD In	Date CAD Out
1	20.11.87	04.12.87
2	20.11.87	04.12.87
3	07.12.87	23.12.87
4	07.12.87	23.12.87
5	14.01.88	24.01.88
6	02.02.88	18.02.88

It was also accepted at the meeting that the use of CAD would enable TW to achieve the target dates required for installation(see item 3.1). AA decided that it would use WOCAD for the production of co-ordination drawings (initially only for Level 4 Zone 2). AA had by this time issued co-ordination drawings:

Level	Zone
1*	Zones 2, 3, 4 and 5
2	Zones 3 and 4
2	Zones 1,2, 5 and 6
3	Zone 1
3	Zone 2
3	Zone 3
3	Zones 4, 5 and 6

(*The list omits zones 1 and 6 as no co-ordination drawings were required for the boiler house and plant rooms as the services were detailed to a larger scale. There was basically only one service in each plant room.)

198. WGI was aware of TW's complaints. Mr Blair had written tersely (but correctly) to Mr Wragg of PMI on 6 November 1987:

"In recent correspondence it appears that Taymech are suggesting their work is being disrupted and delayed due to lack of information from Austin Associates at the appropriate time having regard to their pre-construction programme.

Under the terms of your Contract you are responsible for the flow of information from the Design Team to the Contractor and in the event you consider Taymech's claim is justifiable we will be pleased to learn, at the very earliest time, what measures you intend to take to ensure the situation is rectified."

WGI sent a copy of the letter to Mr Teale and to Mr Edwards at AA. PMI replied to WGI on 16 November which reasonably clearly sets out the position at that time (at least as seen by PMI):

"With reference to your letter dated 6^th November 1987, we comment as follows:-

A. The responsibility for the total direction, co-ordination and integration of the work of the Design Team remains with yourselves. PMI monitor the events and to this end we have since April 1987, registered our concern in letters and at our Design Review Meetings, at the lack of direction between Austin Associates and Taymech.

B. The problems of the preparation of working drawings by Taymech is not recent as your letter suggests, but in fact surfaced some 3½ months ago, As we learnt at the meeting last Thursday the success of the Services installation in meeting target programme now depends on the successful employment of the C.A.D. computer to provide working drawings.

Austin's letter to you dated 9^th November 1987 provides a record of events following the meeting with Taymech on 12^th August 1987, where dates were finally established for issue of working drawings from the Consultants and the Contractor. What is required is the schedule of events prior to this date in answer to Taymech's letter of the 28^th August 1987 and to the schedule attached to the minutes of the meeting of 14^th September 1987. This information will allow you to consider whether a claim for delays due to late issue of information is justifiable.

C. The Taymech issue of information requirements dated 12^th August 1987 details dates for clearance of builders work drawings, location of equipment etc. (fume cupboards etc.) reflected ceiling plans. This still requires close attention on co-ordination on your part as not all dates have been met.

D. Many of the problems we are experiencing are due to information programming still not resolved by the Contractor and in non compliance with Clauses 1/15/A1, A2, A3, A4, A5, 1/22C & 1/22D.

This is reflected in the Contractor's report for the site meeting on 17th November 1987 where we hear for the first time curtain walling and timber studding details are awaited and may be the subject of delays. We have urged compliance with programming requirement for a long time to assist in co-ordination of information issue and we feel this should be clearly stated to the Contractor.

The next meeting with Taymech is on 27^th November 1987 and we trust that the measures being taken will rectify the situation, but we request that we are kept informed of the progress of the C.A.D. operation."

In a further letter of 18 November to WGI Mr Massey of PMI noted "with concern some of the points raised" in a report received from Mr Agate of TW and said

"The situation regarding building services is well known and I will not dwell on that for the time being."

He concluded percipiently:

"I suspect that many of the points raised are all part of the "Agate Wind-up Strategy" and there is no harm in that. However I am concerned that in the fullness of time, others may seek to pin financial values to the allegations."

199. Mr Tyler contacted WOCAD which made an offer to AA on 16 November 1987:

"Thank you for visiting our offices with Paul Tyler and Frank White on Friday afternoon.

I confirm that further to our discussions, we would be delighted to provide drawing services to Austin Associates based on the following agreed principles.

1. That Wocad would reproduce co-ordinated drawings for each level and zone of the project.

2. That these drawings will be the result of required changes indicated by Austin Associates from drawings previously produced by Wocad for Taymech, which indicate service clash points.

3. That Austin Associates will study and approve all drawings prior to their issue to the contractor, and that in this respect Wocad will only be providing a drawing service and cannot be held responsible for any design element of the project.

4. Drawings will be produced A1 size.

5. Drawing schedules noting the issue number used to produce these drawings will be indicated on each drawing produced by Wocad.

6. The production of the drawings will be charged on an hourly rate basis which in this instance will be charged at £23.00 per hour.

7. Excluding a nominated zone on level 4, the above drawings will be produced for a sum not to exceed £10,000 + VAT.

8. One zone on level 4 will be co-ordinated totally by Wocad from individual service drawings for the sum of £1500 + VAT.

9. Should Austin Associates wish to terminate this agreement at the completion of levels 1 and 2 and item 8 above they will only be charged by Wocad for hours expended to that time plus item 8.

I hope the foregoing is a satisfactory summary of our agreement and look forward to your instructions in the near future."

AA accepted this offer, promptly, on 19 November and employed WOCAD's services. As appears from paragraph 1 of WOCAD's letter there was no limitation: "each level and zone". Although at times Mr Tyler suggested otherwise it became clear that AA had retained WOCAD for every level but reserved the right not to continue after level 2 (see paragraph 9 of WOCAD's letter) and made special provisions. I do not consider that his recollection is correct. I also do not accept Mr Tyler's evidence: "Taymech's decision to use CAD was very foolish and really an act of desperation. I took the view at the time that this was a mistake. This was because CAD was still in its infancy and it appeared foolish to start using such technology part way through a complex project such as Phase I. Sadly, I was proved right". This is ex post facto justification. In my judgment, although the use of WOCAD was not successful, the reservations subsequently expressed by Mr Tyler are at variance with AA's actions.

200. The reason why WOCAD was not successful was that it had been thought that the CAD system would automatically highlight the clashes on drawings when in fact, although they might be detected automatically, they had to be resolved by the CAD operator. To that extent it remained a manual process and clashes were not dealt with as quickly as would have been achieved by a completely automatic process. It was nevertheless quicker than using additional draughtsmen and co-ordination engineers. In his letter of 26 November to TW Mr Tyler supported TW and maintained that AA's use of WOCAD was to assist TW:

"3. …. The Project Managers and ourselves directed a clear question to you with regard to your proposal to use computer aided draughting and you replied in the affirmative, that the target dates required to comply with your installation programme could be achieved using this method. Your assurance in this respect was the main reason we supported you in this revised method of working drawing production.

201. WOCAD have been employed by us to complete our co-ordination information required for level 4, Zone 2. We are also employing WOCAD to assist us in the speedy resolution of any problems they encounter in the production of your own working drawings. These measures were taken to assist you in every way possible. Finally, on this point the decision to employ WOCAD is nothing to do with this Practice and was instigated entirely by yourselves."

AA was then (and subsequently) writing to protect itself from TW's claims that it had been delayed by AA's late issue of the co-ordination drawings and their quality. At a site meeting (no 10) on 15 December 1987 item 10.2.3 read:

"Item 9.3.04 Taymec reported the following regarding the production of co-ordinated drawings as follows:

Level 1: AA & Taymec are agreeing details where clashes have appeared and Zones 3, 4, & 5 will be issued before the last zone which will be 11.12.87.

Level 2: issued by 18.12.87

Level 3: issued by 8.1.88

Level 4: issued by 27.1.88

AA pointed out that because of the amount of time Taymec are using the computer, they have been unable to take advantage of the facility.

Taymech reported that there are problems of clashes occurring on level 1 as AA's co-ordinated drawings already in existence had not been used. Most clashes were due to line and level problems which had also been agreed earlier."

It was agreed that in future CAD would include a list of the drawings from which the information had been taken."

Later, under Contractor's Report, the following was minuted:

"TWC handed over their report and a copy is attached.

It was pointed out that TWC would complete the r.c. frame on time but there was an overall delay of some 9 weeks due to the M & E works. After discussion TWC agreed that the services installation could still finish by end dates on programme, on the understanding that the flow of information is maintained.

TWC pointed out that they did not agree with AA's statement at the previous meeting (Item 9.3.06) that they were not responsible for any delay and considered that there was some delay due to the Design Team.

PMI stated that they were impressed with the quality and progress of the work but considered that the blockwork could proceed quicker in several places around the site.

TWC advised that they did not want to be involved with cutting holes after the erection of the blockwork."

202. By this time the differences between TW and AA as to what each was expected to do in relation to co-ordination drawings centred on what is now known as the quality issue rather than on the timing issue.
203. At Christmas TW considered that it could still complete on time, provided that information arrived by the dates then agreed. That was optimistic since, if it was not then clear, it soon became plain that TW was being held up by WOCAD's inability to produce the installation drawings. Unfortunately within TW it appears that TWC thought that Taymech was largely responsible so the impression was conveyed that the latter needed more resources – see the note of a conversation following the Site meeting 11 on 12 January 1988, the minutes of which read (in part):

"11.3.0 Contractor's Report

204. 3.1 The Contractor handed over his report and a copy is attached.
205. 3.2 The Contractor highlighted the following:

a) The concrete frame was 3 weeks behind the programme.

b) The M & E works were 11 weeks behind programme

c) The M & E drawing programme was 20 weeks late and to date only 3 no working drawings had been produced.

11.3.3 WGI commented that the M&E part of the contract was further behind programme now than in November when manually produced drawings of level 1 had been issued. TW confirmed that they were using these drawings on site.

11.3.4 It was pointed out that the delay caused by Taymec's failure to produce drawings was the Joint Venture's responsibility and not the Design Team. It was Taymec's decision to use WOCAD who do not now seem capable of producing the drawings in sufficient quantities and in accordance with agreed programmes. It was considered that the level of information being produced by WOCAD indicated to the Design Team that not all the Design Team's information had been programmed into the computer and the Joint Venture were thus failing to meet their responsibilities.

11.3.5 TW made no comment on the statement in 11.3.4 but reported that they had evaluated the M&E situation and were using their best endeavours to mitigate the problem and complete the contract on time.

11.3.6 Because of the M&E delays work is proceeding on a site with drawings which have not been officially issued under the terms of the contract which requires drawings to be signed by the Design Team.

AA were therefore asked by the Contractor to confirm that the work being installed on site was in accordance with the contract. AA problems at the time were not aware of any problems at the time [written in by hand as a substitution for "AA could not confirm this"].

206. 37. Taymec handed over their report and a copy is attached.

a) Taymec advised the meeting that they were applying pressure on WOCAD to produce drawings.

b) At the request from WGI, TW confirmed that they were satisfied with the M&E supervision and labour force on site. If there was a problem work would be sublet and the Design Team would be notified in accordance with the Contract. TW does not anticipate problems with labour.

207. 3.8 Blockwork is now proceeding ahead of the M&E work which is now out of sequence.

……

11.5.0 Services Engineer's Report

11.5.1 AA handed over their report and copy is attached.

11.5.2 AA highlighted some areas where they thought services could proceed, eg the boiler house area.

(NB) Subsequent to the meeting TW pointed out to WGI that work to the services in the boiler house could not proceed as late changes in design and specification by AA had necessitated altering drawings and details which, although issued to AA, had yet to be approved (14.1.88).)

11.5.3 TW pointed out that the slippage in time noted on AA's report seemed rather optimistic.

….

11.7.0 PMI's Report

11.7.1 PMI confirmed their pleasure to hear the contract would be completed on time.

11.7.2 It was agreed that a meeting between the Joint Venture directors and the Design Team should be convened to discuss the present state of the contract.

…"

208. In my view the true position was that recorded in paragraphs 11.3.2(b) and (c) – 11.3.8. It is also represented by two letters from TW. WGI was then concerned about resolving the problems but Mr Agate of TW had also seen the need to protect its position, as Mr Hyde said, and no doubt clash highlight drawings would be helpful. I do not however consider that TW was producing them for that purpose. I find nothing odd in the later use by TW when making its claim of the clash lists produced at this time (as set out in a letter of 17 December and attachments). It would have been odd if TW had not relied on such contemporary records as were available, especially since TW was not documenting the clashes for the purposes of a claim. In a letter to WGI of 19 January 1988 TW said:

"…The writer must also remind you that it was clearly pointed out at the meeting by the Joint Venture that the co-ordinated drawings are Austin Associates drawings, will always be Austin Associates drawings and at no time are they Taymech/Joint Venture drawings. These facts are clearly set out in the Terms and Conditions of the General Specifications for the M & E Services and the General Specifications of the Main Contract.

We would be obliged if you would clearly report these comments as they were raised by the Joint Venture.

With regard to Item 2.1 we would, once again, point out that the issue of co-ordinated drawings is the responsibility of Austin Associates as a member of the Consultant Team and that it is clearly shown in the documentation (General Specification M & E) that the only line and level required by the Joint Venture is on working drawings. It should be therefore, be noted that at no time is the Joint Venture required to put line and level on Austin Associates co-ordinate drawings.

From these facts it is clearly established that the co-ordinated drawings are issued by Austin Associates to the Joint Venture and should by this time have received the input of all the necessary information for the drawing to be a co-ordinated drawing and that all the information to establish the co-ordinated drawing at this point is clearly the responsibility of the Consultants and the Consultant Team. This would include Austin Associates line and level of the services and any architectural input required to establish the co-ordinated drawings, such as reflected ceiling drawing and any other drawing by the Architect or the structural engineer that had a bearing on producing the co-ordinated drawing.

It is noted under Item 2.1 that there is a comment raised about solution of clashes to be shown on Taymech's highlight drawings. We would correct this situation. The solution of clashes is the responsibility of Austin Associates and the drawings that are to be issued with resolutions on are not Taymech highlight drawings but are, in fact, Austin Associates revised co-ordinated drawings.

It is, therefore, the requirement of the Joint Venture that all reference to so called Taymech highlight drawings are removed from the Minutes, as the Joint Venture does not accept that any drawings that have resulted out of clashes and resolutions of clashes on the co-ordinated drawings are anything other than revised Austin Associates co-ordinated drawings. We would be obliged if you would revise your Minutes to reflect this contractual requirement.

In connection with this we would also draw your attention to Clauses in the General Specification which clearly require the Joint Venture to notify Austin Associates of any clashes on their drawing and wait for rectification of the clashes on the Austin Associates drawings by Austin Associates, before progressing their work, their drawing work or site installation.

With regard to the flow of information, as raised in Item 7, it is necessary to once again make the point that the information flow requirements are contained on the P3 M & E agreed Programme. Much of this information requirement shown on the Programme is now late and the Joint Venture would be pleased if this point could be noted, particularly as the Joint Venture are using their best endeavours to accommodate this late information flow and, albeit, that information flow programmes have been shown subsequent to the Main Programme, they are merely representing the results of the initial late flow of information from the Consultant Team.

Referring to Item 13.1 in the Minutes, we would express our extreme concern with the Architect's comments in this Minute, particularly as the Architect appears to be taking the Joint Venture to task for failing to put into the so-called co-ordinated drawings further information from the Architect's drawings.

We would remind you that the co-ordinated drawings are supposed to be co-ordinated using all of the required information from the Consultant Team, from whatever source it is necessary to obtain it within the Consultant Team.

It would appear, from the Minutes and from letters since received from the Architect, that we are being instructed to feed further Architectural and structural information into the co-ordinated drawings to obtain co-ordination. Clearly this is a situation which proves that the drawings were not co-ordinated and that the information the Architect is requesting to incorporate in the revised Austin Associates co-ordinated drawings is, in fact, late information flow.

It is, therefore, not surprising that clashes are being seen on the co-ordinated drawings (such as light grilles and fittings) if the co-ordinated drawings never benefited from the input of the Architects and Engineers information in the first place. We would, once again, remind you that this should have happened prior to the issue of the so-called co-ordinated drawings.

We would be obliged if you would revise your Minute Report to include the comments raised by the Joint Venture members of the meeting and possibly a footnote with regard to the Architect's comment as a post-meeting footnote.

Your attention to these points would be much appreciated.

It is also noted that no Minute has been reported in the Site Meeting Minute with regard to the Joint Venture's comments reference Taymech's letter and Taylor Woodrow Construction's letter of the 7 January concerning the late information with regard to Boiler House Hotwell, Boiler Deaerator, Path Lab Air Supply Unit, Fume Cupboards and Safety Cabinets.

It must also be noted in the Site Minutes the points raised with regard to the Consultants (Austin Associates) holding meetings with the Joint Venture manufacturers, suppliers or sub-contractors without notifying the Joint Venture.

We would also require minuted that it was established during the course of this discussion that problems have already arisen with regard to instructions being given to suppliers at unofficial meetings by Austin Associates and that the meeting clearly took the decision that in future no meetings would be held with the Joint Venture suppliers, manufacturers or sub-contractors with the Consultants unless they were convened by the Joint Venture, attended by the Joint Venture and held on site.

These points were raised by the Joint Venture at the meeting and prior notification was given to the meeting. Will you please amend the Minutes accordingly."

In a further letter of 21 January 1988 TW also said:

"We must write and record our extreme disappointment with the Minutes of the meeting held on the 11^th January 1988 at 2.00 PM in the PMI Sydney Street Project Office to discuss the drawing situation (Taymech/Austin Associates).

From the writer's reading of the Minutes it would appear that much of what was said has not been reported.

"We would particularly remind you of the Joint Venture's clear statements with regard to the production of the drawings and that the drawings that were being put through the WOCAD system were Austin Associates co-ordinated drawings and that these drawings were having to be fed through the WOCAD system to establish what clashes existed on these drawings for resolution by Austin Associates.

It was also pointed out at the meeting [on 11 January] that the need to use WOCAD was entirely as a result of Austin Associates co-ordinated drawings being not truly co-ordinated and exhibiting many problems.

It was further pointed out at the meeting by the Joint Venture that they could not be considered co-ordinated drawings until such times as all the problems and clashes of the co-ordinated drawings had been resolved. This would appear to be when WOCAD makes the final run on any given drawing incorporating all of the resolutions by WOCAD as well as a considerable quantity of late information input to the co-ordinated drawings by the Architect."

209. In another letter of 19 January 1988 concerning Site Meeting 12, TW made its position clear:

"Under Clauses 5.2, 5.4 and 7 of the Contract Conditions, the Joint Venture should be provided with Co-ordinated Drawings and other Drawings showing the levels required of the various services to enable them to install and complete the Works. It follows that the information on these drawings should be correct and in sufficient detail to enable us to produce our Installation Drawings. There is no responsibility under the Contract for us to check the Co-ordination Drawings supplied, only to check our Installation Drawings against the Co-ordinated Drawings to see that clashes do not occur.

Under Clause 2.3 of the Contract Conditions we have a responsibility to draw your attention to any discrepancies that become apparent between the Contract Bills and Contract Drawings, there is however, no responsibility to check the Drawings issued to us until such times as we are ready to prepare our Installation Drawings.

In the spirit of co-operation we have proceeded with advance checking and employed WOCAD to do this work as with no levels being shown on the drawings other that some undimensioned sections it was proving too excessive for this to be done manually. This is in excess of that required by the Contract Conditions.

We are now in the situation where the Joint Venture is being blamed for the delays in the production of Co-ordinated Drawings and in consequence of this its Installation Drawings.

The writer must also remind you that it was clearly pointed out at the meeting by the Joint Venture that the co-ordinated drawings are Austin Associates drawings, will always be Austin Associates drawings and at no time are they Taymech/Joint Venture drawings. These facts are clearly set out in the Terms and Conditions of the General Specifications for the M & E Services and the General Specifications of the Main Contract.

We would be obliged if you would clearly report these comments as they were raised by the Joint Venture.

With regard to Item 2.1 we would, once again, point out that the issue of co-ordinated drawings is the responsibility of Austin Associates as a member of the Consultant Team and that it is clearly shown in the documentation (General Specification M & E) that the only line and level required by the Joint Venture is on working drawings. It should be therefore, be noted that at no time is the Joint Venture required to put line and level on Austin Associates co-ordinate drawings.

From these facts it is clearly established that the co-ordinated drawings are issued by Austin Associates to the Joint Venture and should by this time have received the input of all the necessary information for the drawing to be a co-ordinated drawing and that all the information to establish the co-ordinated drawing at this point is clearly the responsibility of the Consultants and the Consultant Team. This would include Austin Associates line and level of the services and any architectural input required to establish the co-ordinated drawings, such as reflected ceiling drawing and any other drawing by the Architect or the structural engineer that had a bearing on producing the co-ordinated drawing.

It is noted under Item 2.1 that there is a comment raised about solution of clashes to be shown on Taymech's highlight drawings. We would correct this situation. The solution of clashes is the responsibility of Austin Associates and the drawings that are to be issued with resolutions on are not Taymech highlight drawings but are, in fact, Austin Associates revised co-ordinated drawings.

It is, therefore, the requirement of the Joint Venture that all reference to so called Taymech highlight drawings are removed from the Minutes, as the Joint Venture does not accept that any drawings that have resulted out of clashes and resolutions of clashes on the co-ordinated drawings are anything other than revised Austin Associates co-ordinated drawings. We would be obliged if you would revise your Minutes to reflect this contractual requirement.

In connection with this we would also draw your attention to Clauses in the General Specification which clearly require the Joint Venture to notify Austin Associates of any clashes on their drawing and wait for rectification of the clashes on the Austin Associates drawings by Austin Associates, before progressing their work, their drawing work or site installation.

With regard to the flow of information, as raised in Item 7, it is necessary to once again make the point that the information flow requirements are contained on the P3 M & E agreed Programme. Much of this information requirement shown on the Programme is now late and the Joint Venture would be pleased if this point could be noted, particularly as the Joint Venture are using their best endeavours to accommodate this late information flow and, albeit, that information flow programmes have been shown subsequent to the Main Programme, they are merely representing the results of the initial late flow of information from the Consultant Team.

Referring to Item 13.1 in the Minutes, we would express our extreme concern with the Architect's comments in this Minute, particularly as the Architect appears to be taking the Joint Venture to task for failing to put into the so-called co-ordinated drawings further information from the Architect's drawings.

We would remind you that the co-ordinated drawings are supposed to be co-ordinated using all of the required information from the Consultant Team, from whatever source it is necessary to obtain it within the Consultant Team.

It would appear, from the Minutes and from letters since received from the Architect, that we are being instructed to feed further Architectural and structural information into the co-ordinated drawings to obtain co-ordination. Clearly this is a situation which proves that the drawings were not co-ordinated and that the information the Architect is requesting to incorporate in the revised Austin Associates co-ordinated drawings is, in fact, late information flow.

It is, therefore, not surprising that clashes are being seen on the co-ordinated drawings (such as light grilles and fittings) if the co-ordinated drawings never benefited from the input of the Architects and Engineers information in the first place. We would, once again, remind you that this should have happened prior to the issue of the so-called co-ordinated drawings.

We would be obliged if you would revise your Minute Report to include the comments raised by the Joint Venture members of the meeting and possibly a footnote with regard to the Architect's comment as a post-meeting footnote.

Your attention to these points would be much appreciated.

It is also noted that no Minute has been reported in the Site Meeting Minute with regard to the Joint Venture's comments reference Taymech's letter and Taylor Woodrow Construction's letter of the 7 January concerning the late information with regard to Boiler House Hotwell, Boiler Deaerator, Path Lab Air Supply Unit, Fume Cupboards and Safety Cabinets.

It must also be noted in the Site Minutes the points raised with regard to the Consultants (Austin Associates) holding meetings with the Joint Venture manufacturers, suppliers or sub-contractors without notifying the Joint Venture.

We would also require minuted that it was established during the course of this discussion that problems have already arisen with regard to instructions being given to suppliers at unofficial meetings by Austin Associates and that the meeting clearly took the decision that in future no meetings would be held with the Joint Venture suppliers, manufacturers or sub-contractors with the Consultants unless they were convened by the Joint Venture, attended by the Joint Venture and held on site.

These points were raised by the Joint Venture at the meeting and prior notification was given to the meeting. Will you please amend the Minutes accordingly."

210. Then on 2 February 1988 TW wrote again to WGI:

"….We do not accept that this is the correct position under the Contract and therefore give you formal notice under Clause 25.2.1.1 that there is a delay to the Contract due to us not having received the necessary drawings, details and levels as set out in Clause 25.4.6 of the Contract Conditions. In accordance with Clause 25.2.2 we would inform you that at the present time we estimate the delay to be in the region of 38 weeks.

We further give notice under Clause 26.1 that we shall seek [illegible] … due to the matters contained in Clause 26.2.1 of the Contract Conditions due to the disruption likely to be cause, due to the delay, as well as the costs incurred due to the employment of additional draughtsmen and WOCAD in trying to obtain drawings without clashes to that we could prepare our Installation Drawings.

We would suggest a meeting between the Design Team and the Directors of the Joint Venture be convened in order to discuss [illegible] …..issues on the present state of the Contract and our operations overall.

We would suggest that the meeting is arranged for either Monday 8 February am or Thursday 11 February PM.

Please confirm by return if either of these dates are suitable.

That letter was certainly notice under clauses 25 and 26 of the contract conditions, but the estimate of delay of 38 weeks was obviously a conjecture. In my view had the preceding letters each stood alone, each would also have been plainly notices under clauses 25 and 26. (For example, WGI's view, albeit somewhat flawed, of the delay caused by late and inadequate information was of the order of 16 weeks.)

211. In the end TW ceased to use WOCAD. AA contended that its lack of success should be treated as TW's responsibility. In my view the real reason why TW turned to WOCAD was because of the general shortage of skilled draughtsmen, aggravated by AA's failure to issue the co-ordination drawings on time and in a usable form (to which I shall turn). AA also made use of WOCAD for the same reasons: it was short of staff and it could not provide TW with what it needed and on time. I have set out the reasons why WOCAD was not a success. In my judgment Mr Hyde was right in his view that the material difficulties encountered with WOCAD arose because it had been given poor drawings. He said when cross-examined :

"In hindsight it is obvious to me that they were unable to produce meaningful drawings. The difficulty at the time was whether we carried on using the CAD system which created just the same difficulties as we had encountered previously manually. So we tried manually -- they could not do it -- and we tried it with the CAD, and we could not do it. And it really did not matter which method we followed. The crux of it was that the information was not there for either system of producing drawings."

In the circumstances, whilst the use of WOCAD fell within TW's sphere of risk under its contract with RBH, I am not satisfied that it would have used WOCAD had AA complied with its obligations towards RBH. There was correspondence with WOCAD blaming them - see for example Mr Hyde's letter of 7 March 1988, his memorandum of the same day and his evidence about it. That letter followed criticism by Mr Hyde, Mr Barrett and Mr Honey who had been alarmed at the quality of WOCAD's work. Undoubtedly WOCAD did not live up to the expectations that it had engendered but I do not accept that TW in some irresponsible manner went ahead with WOCAD knowing that WOCAD would be unable to highlight clashes automatically. I now turn to the issue of quality of the M&E drawings.

Quality of M&E Drawings

212. In 1988 PMI asked Cundall Johnston & Partners, a firm of Consultant M&E services engineers, to look at AA's M&E drawings, as well as the specification and the contract conditions to see whether TW's complaints were justified. That firm delivered a considered report in September 1988. Amongst its conclusions were:

"The co-ordination drawings give less information than could reasonably be expected. In particular, being neither dimensioned nor shown on a grid, they fell short of the definition given in HN(78)(6) on which the engineers' commission was based. (paragraph 1.7)

and (paragraph 4.2):

"The co-ordination drawings provided by Austin Associates fell short of the requirements of HN78(6) in that they were undimensioned.

It is our opinion that more and better referenced co-ordinated sections should have been provided.

It is also our opinion that it was unreasonable to make the contractor responsible for ensuring that arrangements paid the necessary regard to the needs for servicing, maintenance and replacement."

This report fortified Mr Hutchings' belief that AA was wrong to reject TW's criticisms of its work, a view shared by PMI. However WGI initially did not consider that TW was justified in its claims under clauses 25 and 26 of the JCT conditions for extensions of time and the payment of additional loss or expense on the grounds of late and inadequate information. TW therefore felt that it should obtain an authoritative independent report. In September 1990 Mr Hall got in touch with BSRIA (The Building Services Research and Information Association) which provides expert services in relation to many aspects of construction and the building services industry. The BSRIA report 65120/1 of October 1990, concluded that AA's drawings did not constitute co-ordination drawings as defined in the DHSS conditions and in that respect supported TW's case for late and inadequate M&E information and that the M&E co-ordination information issued by AA was inadequate. TW submitted the report to WGI in March 1991 together with its answer to WGI's rejection of its claims. The report was written by Mr C.J. Parsloe who was the author of BSRIA Technical Note TN 8/94: "The Allocation of Design Responsibilities for Building Engineering Services - a code of conduct to avoid conflict." The report included the following conclusions:

"…on the information provided, it is our assessment that the designer's drawings do not constitute co-ordination drawings as defined in the DHSS conditions. The drawings fail to meet two of the requirements of the definitions for co-ordination drawings.

Firstly the number of sections given on the drawing are insufficient to adequately show 'the inter-relationship of two or more engineering systems' in all areas where it would be reasonable to expect such information to be given.

In addition, the drawings fail to meet the requirement that:

'the clarity of the drawings shall be such that the Contractor/sub contractor(s) may use them for construction purposes'.

The additional information needed to enable the co-ordination drawings to be used as installation drawings is considerable.

It would not have been possible to produce installation drawings from the designer's layouts without further information.

213. It is not necessary to quote further from these extensive, comprehensive and well-reasoned reports. AA was critical of them - see its "Analysis of the BSRIA Report" dated January 1991. In it AA accepted that their co-ordination drawings were to show approximate locations only of the services, and not precise locations as it contended that responsibility for determining the precise position of the services rested with TW (see page 046). However Mr Down and Mr Dix endorsed the Reports. Mr Stephen Edwards (and Mr Mackenzie) thought that the former supported AA and that the latter was based on a misunderstanding of AA's duties. In my view, in these circumstances, and given that the BSRIA report was subjected to a detailed analysis by AA, the two reports, coming as they do from reputable sources, are relevant and admissible evidence to support (if they do) RBH's case as to the inadequacy of AA's drawings provided that Mr Down and Mr Dix were right to support them. Both reports influenced WGI in its decisions about TW's claims. The BSRIA report was material to TW's claims in the arbitration, and, it seems, to RBH's decision to settle them.
214. RBH's complaints were set out at some length in the pleadings. It is not necessary to reproduce them. The fundamental question is whether or not the drawings met the requirements of Appendix A to the Supplementary Annexure (see para 17.9 of Statement of Claim), including the overriding requirement of clarity. There was little significant dispute about the level of information that was actually shown on AA's drawings. The case was primarily about the drawings for levels 1-3 as RBH accepted that those for levels 4-6 were better and because its case based on TW's claims stemmed from those levels. The investigation was further refined since it concentrated on the clashes contained in CO 10 and those identified for level 1, zone 4 and (to a lesser extent) level 3, zone 2. RBH's case was thus that AA's drawings had to show with clarity and a reasonable degree of accuracy, the actual positions of the services so that TW could use the drawings to prepare his installation drawings and for other construction purposes. RBH gave as instances of the lack of clarity: the absence of cross references to sections and other related drawings; lack of notes, and some section locations not shown on plan (and sometimes difficult to locate at all); details shown on plans and sections not corresponding; use of insufficiently large scale in congested areas; conflicts between related co-ordination drawings and between co-ordination drawings and single service drawings (and inconsistent titles on drawings); absence of or errors in draughting conventions showing how pipes cross one another; sizes of pipes and ducts not always shown; electrical services sometimes not shown. The issues seemed therefore to be quite simple: did AA drawings show clearly the relationship of the services and could TW have used them for construction purposes? Mr Dix said in para 5.1 of his report:

"…the true test of AA's co-ordination drawings is whether the contractor was able to use the AA drawings for construction purposes without difficulty".

Mr Tyler when asked whether he agreed that this was the correct test would say only, and then somewhat grudgingly, that it was "not unreasonable". Both the answer and the manner in which it was given told me much about AA's attitude to its obligations to its client and to a contractor. Mr Mackenzie also agreed, making the obvious point in relation to draughting conventions that not every error was culpable:

"Q. ….In relation to the positions of services relative to each other, I imagine you would accept that co-ordination drawings should show clearly where services cross, which one is on top and which is below?

A. They should show that, yes.

Q. And that is done by the use of established drafting conventions, in particular indicating the one below in dotted lines?

A. Yes.

Q. Mr Mackenzie, at any point where services cross, one should be able to tell immediately from a properly prepared co-ordination drawing which service is on top?

A. One should be able to do that.

Q. Immediately; just looking at it straightaway?

A. Yes, but I had not seen, I think, many drawings in my life that do not have any errors of that nature on them.

Q. Yes, I am sure, Mr Mackenzie, that must be so. Nobody is suggesting that drawings have to be error-free. It is a question of the degree of these things; you understand?

A. Yes."

Under AA's contract with RBH the Supplementary Annexure to the ACE conditions gave AA the following obligations:

"1.1 The Consulting Engineer shall, if so requested by the Client, undertake responsibility for Co-ordination of Engineering Services designed by the Consulting Engineer and for the provision of Builders Work Information associated therewith.

215. 2 In fulfilment of this responsibility the Consulting Engineer shall:

(a) collaborate fully with other professional advisers appointed by the Client;

(b) collaborate with the appointed Architect, in the particular case of disposition of user outlets and environmental terminals, in accordance with procedures agreed by the Client provided that such procedures be neither more complex nor more comprehensive than those defined in Appendix B hereto;

(c) prepare Co-ordination Drawings and such other documentation as may be required in the opinion of the Consulting Engineer to fulfil his design responsibility;

(d) provide the Builders Work Information necessary in the opinion of the Consulting Engineer to enable detailed structural provision to be made by others for the engineering services designed by the Consulting Engineer."

His Honour Judge Hicks QC held ([2000] BLR 79) that it was the common intention of RBH and AA that co-ordination drawings would be provided to the contractor and, conversely, that there was no common intention that the specification for the M&E works would contain provisions placing the responsibility for co-ordination of M&E services on the contractor.

216. AA's contract provided further in Appendix A to the Supplementary Annexure that:

"1. The following headings and definitions as set out in the "Annexure to ACE Model Form of Agreement D" (the "Hospital Annexure" – HM(67)7) shall be retained for the purposes of this Supplementary Annexure:-

DEVELOPMENT PLAN

DEVELOPMENT CONTROL PLAN

OUTLINE SKETCH DESIGNS

SKETCH DRAWINGS

PRELIMINARY DRAWINGS FOR ENGINEERING SERVICES

217. The definition under the heading WORKING DRAWINGS shall be retained for the purpose of this Supplementary Annexure but the heading and references in the following text shall be amended to read TENDER DRAWINGS.
218. To these definitions the following shall be added for the purpose of this Supplementary Annexure.

(a) CO-ORDINATION shall mean the provision of information clearly showing the inter-relationship of two or more engineering systems and, where appropriate, the physical or spatial relationship of the components of engineering systems to the remainder of the Project. This information will normally be provided in the form of Co-ordination Drawings.

(b) CO-ORDINATION DRAWINGS shall mean drawings prepared with intent to show clearly the inter-relation of two or more engineering or public health systems.

The clarity of the Co-ordination Drawings shall be such that the Contractor/Sub-contractor(s) may use them for construction purposes although it is recognised that the provision of Installation Drawings may be necessary.

The drawings shall be prepared to a scale of not less than 1/50 and shall depict the services in their allotted and co-ordinated position using conventional semi-diagrammatic style.

Where any dimension in cross-section is 150 mm or more, duct-work, electrical trunking and pipe work shall be shown in double line. Drawings shall demonstrate that adequate space has been made available for access and maintenance.

The use of drawings having a superimposed grid and an associated convention for the indication of actual positions of ductwork and piping in relation to the grid may be used to reduce the necessity for dimensions.

Additional drawings to a scale of 1/20 may be prepared to amplify detail in certain areas of the Co-ordination Drawings if, in the opinion of the Consulting Engineer, these are necessary for clarity. Similarly, sketch details may be prepared to indicate typical arrangements, or repetitive assembly details eg trap sets, PRV sets, heater or calorifier connections. These need not necessarily be to scale and will be issued as a guide to installation only.

Note: The drawing requirements for co-ordination purposes will vary from project to project and it is not possible therefore wholly to define the appropriate provision in terms of numbers, extent and service groupings.

(c) BUILDERS WORK INFORMATION shall mean documentation prepared to show requirements for work of a structural nature which is required to be carried out to facilitate the execution of the Works.

The Builders Work Information shall provide the Architect with the information to instruct the Contractor to carry out the Builders Work in connection with the Works except insofar as detail of minor items may not be available in default of issue of Authorised or Certificated drawings by manufacturers prior to firm orders being placed.

Full information shall be provided to illustrate the basic structural requirements associated with the engineering services eg lift shafts, chimneys, flues, sumps, ducts, holes above 150mm round or rectangular, sleeves of all sizes in RC or other structural members and access requirements wherever necessary.

Drawings of floor and wall ducts, chases and holes in RC or other load-bearing work, fixtures involving building trades and dimensioned details of bases etc for all plant items, with imposed structural loads shall be prepared.

Requirements for any abnormal builders attendance such as scaffolding and hoisting facilities shall be scheduled.

(d) INSTALLATION DRAWINGS shall mean drawings prepared, for approval by the Consulting Engineer, showing details of proposals for the execution of the Works.

Such drawings shall include fabrication details for manufactured plant and equipment, including pipework, ductwork and brackets or supports where site measurement is implicit to the fabrication process.

Drawings illustrating erection procedures fall into this category, as appropriate, as do conduit layouts for electrical and communication services and such specialist wiring diagrams as are necessary to demonstrate that control and other systems meet the specification.

Similarly, drawings and information for builders works which have no structural implications, small holes less than 150mm round or rectangular, bracket fixings and the like are erection orientated and should be so provided."

219. In my view these provisions are an ordinary expression of the purpose of co-ordination drawings. Co-ordination drawings are intended to show the final layout of various mechanical, electrical, and plumbing services (piping, conduits and ducts) in ceiling spaces and elsewhere, since the contract drawings may show only the layout of these systems schematically. Co-ordination drawings are prepared to ensure that the various systems will fit into the limited amount of space available. Co-ordination takes the mechanical, electrical and plumbing design, as shown on contract or other design drawings which may be schematic only, and fits that design into the building space available. These provisions plainly call for highly detailed drawings. The contractor will still have to produce installation or shop drawings to deal with items of plant etc that are its responsibility and with the lines and levels and runs where design requirements allow options.
220. In paragraph 54.2 of the RASC RBH made certain general allegations which generated some arid and unrealistic skirmishes between AA and RBH. For example, as mentioned elsewhere, RBH's broad statement that AA's drawings "did not show sufficient detail for installation purposes" had to be clarified in November 1999 by paragraph 14 of the trial certificate which stated by reference to paragraph 3(b) of Appendix A to the Supplementary Annexure:

"The wording at Definition 3(b),"The clarity of the Co-ordination Drawings shall be such that the Contractor . . . may use them for construction purposes", did not mean that the clarity of the co-ordination drawings should be such that the contractor should be able physically to construct the works by reference to those drawings alone. On its true interpretation it meant that the co-ordination drawings should be clear enough for the Contractor to use them, with other relevant information, to prepare installation drawings as necessary (and as required by clauses B1:03:08, B1:03:18, and B1:04:15-16 of the Specification) in order to physically install the works. In other words, it was not AA's duty to prepare co-ordination drawings in such manner as to make it unnecessary for the contractor to prepare installation drawings. If the contractor was not able to proceed directly from AA's co-ordination drawings to actual installation, that does not mean that AA were in breach of obligation. "Other relevant information" does not include information that should be shown on co-ordination drawings.

(Note:

The Claimant does not contend that Taylor Woodrow/Taymech should have been able to install the works directly from AA's co-ordination drawings, i.e. without preparation of installation drawings by Taylor Woodrow/Taymech. Nor does it contend that Taylor Woodrow/Taymech should have been able to prepare installation drawings by using only the information on AA's co-ordination drawings. The Claimant to re-word the first sentence of paragraph 54.2 of Statement of Claim accordingly.)"

AA made the point that the general allegations in paragraph 54.2 of the RASC had to be considered in the light of more specific allegations in paragraphs 55.1 (38 co-ordination queries raised by TW), 55.2 (729 clashes and/or errors alleged by TW) and 58 (clashes during installation alleged by TW), but the effect of the particulars given was that RBH relied on the clashes or queries listed in paragraphs 55.1, 55.2 and 58.

221. Yet AA both contended and apparently admitted that it had never intended to comply with the requirements of the Supplementary Annexure in terms of the detail required. Indeed until November 1999 (see above), AA's case had been that "the nature and extent of the co-ordination drawings to be provided by AA was a matter for decision by AA". That contention was not pursued as result of paragraph 13 of the agreement recorded in the trial certificate (although Mr Tyler was not apparently aware of this concession). It is not therefore necessary to consider whether the pleadings sufficiently set out the respects in which the drawings were insufficient for installation purposes. RBH was therefore right to draw attention to the contrast between the terms of AA's contract and what AA had said in correspondence from which it seemed that AA's case was largely dependent on being able to justify its reading of the contract (just as Mr Stephen Edwards had thought the BSRIA report was based on misapprehensions). For example, AA had said on 27 August 1987

"our drawings indicate the design intent but do not show sufficient detail for installation purposes without additional detail being added".

In a letter of 3 February 1988 AA said:

"Our co-ordination drawings have been produced to indicate the relationship of one service with another, i.e. either above or below, or to which side. There is no requirement that they should be produced with line and level as suggested by the Contractor."

Again on 10 October 1990 AA said in another letter (also written by Mr Robert Edwards):

"The Health Note allows the Consulting Engineer to apply an appropriate interpretation for the particular project, which in this instance was to place TWC under contract to prepare Installation Drawings of all services showing their intentions for precise line and level of Services."

The letter also said:

". . . our intent has always been that multi-service co-ordination drawings would be issued to show the general arrangement, which are diagrammatic in certain particulars, and the Contractor was to prepare Installation Drawings showing his proposed detailed arrangement of services and precise Line and Level. The contract specification is written in that manner."

These letters are however consistent with AA's approach from the start of TW on site, if not earlier. Mr MacKenzie accepted that AA had to provide full information about "holes above 150mm round or rectangular" (see above) but in March 1987 AA refused to provide CNM with that information relating to the locations of ducts or the holes for sumps in the level 1 reinforced concrete ground floor slab, even though AA had made Genever responsible for providing this information in their contract. Later AA did not provide and then provided the wrong information about the locations of the holes for the radiators through the RC slabs as they said all builder's work holes were TW's responsibility. Mr Tyler tried to brush this incident aside when he was asked about it, but it seems to me to provide a useful example of AA's double standards. (Holes return when I consider disruption to the blockwork.) Clearly the information was to be provided by AA so it was left to Genever to do so and the latter's claim for additional payment was rebuffed whilst at the same time AA was maintaining that TW was also responsible for details of this kind. In addition, and relevant to the timing of the co-ordination drawings was AA's failure to provide invert levels on the drainage drawings for levels 2-6 when they were issued "For Construction" in April 1987, as a result of which it had to be done later by Genever (in July) with marked reluctance . Since Mr Tyler accepted that levels were known earlier and that it was Genever's job to include them the reason why AA did not give them to Genever is inexplicable (and Mr McKenzie could not provide a technical reason). It could have been to avoid conceding to TW that it was not the latter's responsibility. Thus the reason why the co-ordination drawings for the next most critical level (2) were not issued until 7 September (level 3 on 18 September) was because AA failed to enable Genever to do so in time (as Mr Mackenzie effectively admitted). Yet at the meeting AA led TW to believe that the drawings would be issued on the dates given. AA's reliance on the change in the depth of the ceiling voids between levels 1 and 2 and between 2 and 3 is misplaced. The drainage drawings with the changed invert levels should have been issued at the beginning of April but were not issued for level 1 until about 1 May 1987.

222. In its opening AA amplified its case. It submitted, in accordance with its stance in correspondence, that the M&E sizes were to be shown on the single service drawings detailing the design of individual services (and the drainage drawings were to show levels – without which the co-ordination drawings could not be prepared, as the experts agreed and Mr Mackenzie accepted). The single service drawings were however complementary to the co-ordination drawings which showed the interrelationship between the individual services and had to be read in conjunction with them. AA referred to the definitions in Appendix A of HN78(6) to the Supplementary Annexure, which I have set out above. They include this paragraph:

"The use of drawings having a superimposed grid and an associated convention for the indication of actual positions of ductwork and piping in relation to the grid may be used to reduce the necessity for dimensions."

Co-ordination plan drawings showed the relationship of the various individual services along their routes. Co-ordination section drawings showed the relationships of the individual services as "layered" above the suspended ceilings on each floor. The level of each service would generally be determined by AA by scaling from the sections, which were positioned in plan in relation to the structural grid, and using the ceiling and structural floor levels detailed on the architect's and structural engineer's drawings and invert levels on the drainage drawings. The exact levels could not be finally determined until the contractor had established his equipment, fabrication and fixing details etc. Hence the need for development of the consultant's co-ordination drawings into installation drawings. According to AA, the installation drawings prepared by TW were to amplify and finalise the Design Team's drawings issued for construction (particularly in respect of items subject to open tender, as was the case here, and to suit fabrication and fixing details, installation sequence). These show the layout of each service in plan, and that same information should be on the co-ordination drawings.

223. Single service drawings give descriptions and dimensions of each run of pipework or ducting. Co-ordination drawings do not or do not necessarily provide this information (but there is the requirement that pipes over 150 mm in diameter must be shown in parallel lines drawn to scale) so the single service drawings in some respects supplement co-ordination drawings. RBH did not rely on the absence of this information from the co-ordination drawings. RBH did however rely on the fact that only the drainage drawings provided additional information in relation to the positions of the services. I do not consider that AA could have relied on the single service drawings to supplement the co-ordination drawings in order to achieve the clarity required by the Supplementary Annexure, unless both the co-ordination drawings and the single service drawings showed the same and consistent information and that it was not necessary to have supplementary co-ordination drawings.
224. Co-ordination drawings for a specialist hospital with many services are complex. AA maintained, correctly, that some errors and omissions were inevitable and thus excusable, especially if drawings had to be altered to accommodate changes. I did not understand RBH to suggest that AA ought, by the exercise of reasonable skill and care, to have avoided all the matters of which TW and it complained. Thus AA accepted that there were errors and clashes in AA's drawings and that queries arose. It said that they were resolved promptly. AA agreed that correcting errors should not of itself be a cause of delay to the project (as it was a normal part of the design process). It contended that the preparation of installation drawings by TW was prolonged by its lack of proper planning and programming and the shortage of adequate skilled draughtsmen, not by inadequacies of AA's drawings.
225. Mr Bartlett for AA made quite extensive submissions about the interpretation to be given to AA's contract since the precise allocation of responsibility between the various members of the design team and the contractor depends initially upon the contractual arrangements. However in my judgment the obligations of a consultant strictly cannot be defined by reference to the provisions of the contract between the client and a contractor, not least because it will not exist at the time when the consultant contracts with the client. Where the object of the consultant's engagement is the provision of drawings or other information to a contractor in accordance with a prospective contract then either expressly or by implication there may be an obligation to do so in a way that will enable the employer to fulfil its obligations to the contractor. But there may still be a gap between what the consultant undertook and what the contractor expects to receive (see the lacuna that may be created by paragraph 1.3 of the Supplementary Annexure). Thus I do not consider that the terms of the contract between RBH and TW such as the M&E Specification are strictly relevant (although they are or may be relevant in the examination of the facts.) (I have referred to the decision of Judge Hicks.) Clauses B1:03:08, 1:03:18 and 1:04:16 of the M&E specification did not affect AA's obligation to produce co-ordination drawings (the text of which is contained in the annexe to this judgment). They required TW to take dimensions on site, to provide working drawings necessary for the installation and co-ordination of the work, and to produce layout drawings indicating all plant equipment and pipework and giving lines, levels and positions of equipment. In other words they called for installation drawings within HN78(6) in the circumstances there contemplated.
226. In order to introduce some extra-contractual material Mr Bartlett referred to Lord Hoffman's well-known dicta in the Investors Compensation Scheme [1998] 1 All ER 98 at pages 114-115:

"The result has been, subject to one important exception, to assimilate the way in which such documents are interpreted by judges to the common sense principles by which any serious utterance would be interpreted in ordinary life. Almost all the old intellectual baggage of 'legal' interpretation has been discarded. The principles may be summarised as follows.

(1) Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

(2) The background was famously referred to by Lord Wilberforce as the 'matrix of fact', but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man.

(3) The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent. They are admissible only in an action for rectification. The law makes this distinction for reasons of practical policy and, in this respect only, legal interpretation differs from the way we would interpret utterances in ordinary life. The boundaries of this exception are in some respects unclear. But this is not the occasion on which to explore them.

(4) The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax (see Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] 3 All ER 352; [1997] 2 WLR 945.

(5) The 'rule' that words should be given their 'natural and ordinary meaning' reflects the common-sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Cia Naviera SA v Salen Rederierna AB, "The Antaios" [1985] AC 191 at 201:

'… if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.'

Lord Hoffmann's reference to Mannai Investment Co presumably includes what he said ([1997] 3 All ER 352 at page 380):

"In the case of commercial contracts, the restriction on the use of background has been quietly dropped. There are certain special kinds of evidence, such as previous negotiations and express declarations of intent, which for practical reasons which it is unnecessary to analyse, are inadmissible in aid of construction. They can be used only in an action for rectification. But apart from these exceptions, commercial contracts are construed in the light of all the background which could reasonably have been expected to have been available to the parties in order to ascertain what would objectively have been understood to be their intention: see Prenn v Simmonds [1971] 1 WLR 1381 at 1383. The fact that the words are capable of a literal application is no obstacle to evidence which demonstrates what a reasonable person with knowledge of the background would have understood the parties to mean, even if this compels one to say that they used the wrong words. In this area, we no longer confuse the meaning of words with the question of what meaning the use of the words was intended to convey."

Whether or not it is to be derived from ICS Mr Bartlett is right in his submission that the contracts are to be read not with literalism, but with an understanding of the practical background and the realities of the work involved and that in interpreting, or, rather, applying, the definition of co-ordination drawings in the Supplementary Annexure, the views of responsible engineers on what proper co-ordination drawings should be like in practice may be helpful. Those views, even if unanimous, cannot of course be decisive if the contract is not capable of being so read.

227. Thus Mr Bartlett referred to the ACE Guidance Note (B&S 1/19810 of January 1981), as did Mr Stephen Edwards. I do not consider that it says more than or qualifies the documents incorporated in AA's agreement so I quite understood why Mr Dix did not refer to it in his report. Describing the Department of Health "as having more experience in this area than any other client body" it quoted its definition of co-ordination:

"… the provision of information clearly showing the inter-relationship of two or more engineering systems and, where appropriate, the physical or spatial relationship of the components of engineering systems to the remainder of the Project".

It then makes the valid, if obvious, point that responsibility is a skein divided between architect, consulting engineer and contractor and varies from project to project "dependent upon whether the Consulting Engineers have had their appointments extended to include the duty of preparing co-ordinated drawings". It patently cedes place to the contract in question and cannot be used to interpret it. It refers to standard terms of appointment and in Mr Bartlett's submission set out "the understanding of consulting services engineers concerning the nature of their task when their duties under Form D were extended by the Supplementary Annexure (as happened in the present case)". I do not consider that ICS authorises the interpretation of a standard form by reference to the views of the organisation that published it, when, necessarily, those views are not consistent with the form itself. Standard forms are documents which are proffered by professional and other bodies as conditions which can be safely used by the inexperienced client (as well as by experienced clients) and have to be read without regard to the assumed interests of their proponents, even where they do not represent the product of potentially differing interests (e.g. the JCT, ICE, or I.Mech.E/IEE standard forms). In my view for that reason alone it is not permissible to refer to it. In addition, although the ACE Conditions (as amended) were incorporated in the contract with RBH, they were expressly subject to the directives specified and other directives. Clause 2(A) concluded: "In the event of any conflict between the provisions of Form D and this Agreement the latter shall prevail", i.e. the other provisions and the other documents referred in the Agreement (see the annexe to this judgment). However it has importance in that it shows that whilst as a matter of practice the ACE considered that under the ACE conditions a Building Services Engineer such as AA is basically "responsible for ensuring that co-ordination of those services which he designs is practicable" but that if

"appointed to undertake the preparation of fully co-ordinated drawings as an additional duty (i.e. by the PSA or DHSS, in accordance with special agreements, or by a private client agreement in similar circumstances) it becomes his responsibility to produce drawings to illustrate the practicability of inter-service co-ordination. (NB these are not working or installations drawings – see definitions in special Agreements)."

Thus whereas final positions would not be required to be shown under general practice they could well be required by a specific agreement (as Mr Dix rightly, was in my view pointed out by his reference to the Supplementary Annexure, when asked about it.) It therefore recognises that the general M&E practice is subject to the terms of the appointment in question – a point that Mr Dix made when questioned about it . If anything, therefore, as a statement of general and applied practice it supports RBH's case, and not AA's case.

228. As Mr Edwards-Stuart correctly submitted, the ACE Guidance Note is of general application and not specifically directed to hospitals so that, if one were to apply ordinary rules, it would have to cede priority to HN78(6). Equally, because it is general, it provides no additional assistance in determining what might be good practice on hospital projects. It naturally refers to the definition of co-ordination in HN78(6) and it covered the position of consulting services engineers when their duties under ACE Form D were extended by the Supplementary Annexure. Thus it deals with part of AA's contract responsibility: "to produce drawings to illustrate the practicability of inter-service co-ordination". It also noted: "(NB. These are not working or installations drawings - see definitions in special Agreements)." Thus these references in my judgment in practice do no more than merely set the scene for the present debate, exemplified by parts of paragraph 3(b) of Appendix A to the Supplementary Annexure to which I have referred:

"The clarity of the Co-ordination Drawings shall be such that the Contractor/Sub-contractor(s) may use them for construction purposes although it is recognised that the provision of Installation Drawings may be necessary.

The drawings shall be prepared to a scale of not less than 1/50 and shall depict the services in their allotted and co-ordinated position using conventional semi-diagrammatic style."

Furthermore I do not consider that the ACE Guidance Note should be regarded as a document which needs to be examined to understand AA's agreement which is already long and seemingly comprehensive and, by referring to other similar documents, contains all that is needed to make sense of it. So, although paragraph 3(b) does not in itself draw a clear line between the information to be provided on the engineer's co-ordination drawings, and those on the contractor's installation drawings, that line can be found once the remainder of the Supplementary Annexure (and other documentation) is looked at, such as paragraph 3(d) which, when its opening is read with what follows, effectively redefines para 3(b) by stating what a co-ordination drawing need not provide. Mr Dix said in cross-examination (at the end of a set of instructive and rational answers) that he did not think that statement was a better one: "That is what we work with within the industry".

229. Is there a distinction between "construction purposes" and "installation purposes" and, if so, what is it? In my judgment the answers may again conveniently be found in HN78(6), reading it as a whole. In my view it is clear from the definition of Installation Drawings that the contractor is going to add those details which he is operationally responsible for obtaining, such as "fabrication details for manufactured plant and equipment, including pipework, ductwork and brackets or supports where site measurement is implicit to the fabrication process". The last paragraph is also significant:

"Similarly, drawings and information for builders works which have no structural implications, small holes less than 150mm round or rectangular, bracket fixings and the like are erection orientated and should be so provided."

When these provisions are read with the earlier paragraphs it is clear that these definitions mean, first, that the consultants have to provide drawings which show services which are capable of being constructed in the space or areas in question and do not clash with the structure or other services; secondly, that the drawings have to be sufficiently dimensioned that they can be used by the contractor to construct the services; thirdly, that installation drawings may only be needed for the final details of the works especially where they are dependent on information for which the contractor is solely responsible. The second conclusion is obvious from the reference to the use of "a superimposed grid and an associated convention for the indication of actual positions of ductwork and piping in relation to the grid …to reduce the necessity for dimensions". Thus dimensions will be required, i.e. "line and level", not intended positions or schematic positions (as Mr Dix pointed out). This in turn shows what is practice is meant by the opening paragraph which defines co-ordination as providing information which clearly [my emphasis] shows "the inter-relationship of two or more engineering systems and, where appropriate, the physical or spatial relationship of the components of engineering systems to the remainder of the Project" [my emphasis]. TW had of course obligations to produce installation drawings with dimensions and levels. For example clause 1:04:16 of the M&E Specification (see annexe to judgment) states:

"The Contractor shall be responsible for the preparation of all fully dimensioned drawings of standard at least equal to, and of a scale sufficient to indicate to the Engineer, installation details of the following.

Layout drawings indicating all plant, equipment and pipework that is to be installed giving lines, levels and positions of equipment.

All plant rooms and works therein.

All ventilation ductwork and fittings.

Shop drawings of all manufactured and fabricated items and equipment.

…".

230. These provisions however beg the question of the source of the dimensions and levels. In my judgment the answer for this project is: from AA's co-ordination drawings. TW was responsible only for the details as it affected those aspects of the installation which were solely its responsibility. TW could not deviate from the co-ordination drawings without AA's permission so it had to have that information before it could work on its drawings (see clause B1:03:48 of the Specification). RBH was right to point to the evidence of Mr Robert Edwards when he said that the purpose of the co-ordination drawings was to demonstrate that the services could be accommodated in the space provided and that in congested areas AA's drawings had to have sufficient precision for that to be established. Mr Dix, helpfully, explained in paragraph 4.10 of his report, that AA's co-ordination drawings did not use a superimposed grid and they contained almost no dimensions. The position of the services in plan could be determined only by scaling from the 6-7m building grid. That grid, as used by WGI, was too great to achieve a scalable accuracy of 50 mm or less, which would have been the purpose of a superimposed grid. He said that a 300mm grid was needed as paper drawing stretch and the printing process can distort scale significantly. (The fact that, as Mr Dix accepted, it is easy to check that a drawing had not stretched seems to me to be irrelevant - such a check is to be avoided.) An associated section drawing was needed so that the position of the services could be scaled with reasonable accuracy at that point. As RBH correctly submitted, unless dimensions were given, AA's co-ordination drawings had to show the position of individual services to the accuracy permitted by a 1:50 drawing with a suitable superimposed grid (or a 1:20 drawings where clarity required the use of a larger scale). Within this degree of accuracy the co-ordination drawings had to show the "actual positions of ductwork and piping" (see the definition in Appendix A to the Supplementary Annexure). Mr Dix cogently said about clause 3(b):

"This clause states 'their allotted or co-ordinated positions'. I understand this clause to mean that they should be shown in the actual intended positions. Without the use of dimensions it should therefore be possible to scale off the drawings to an accuracy of ±50 mm or less. I do not take the term semi-diagrammatic to imply that the positions are semi-schematic, or semi-accurate. The term 'semi-diagrammatic' refers to the essential draughting freedom needed to depict the layouts clearly, using accepted draughting conventions."

231. No one could disagree with Mr Bartlett when he submitted that "the task of construction involves a number of elements, including planning, programming, procurement, drawing, and installation" and that "to say that the co-ordination drawings must be usable for construction purposes means that they must be usable by the contractor as part of the information that he uses to carry out his own tasks". However, as already indicated, I do not accept his next proposition: "to say that the co-ordination drawings must be usable for installation purposes is to say something quite different, and much more onerous, which paragraph 3(b) [of HN78(6)] does not say." HN78(6) in my view plainly envisages the co-ordination drawings may have to be usable for installation purposes, unless of course they have to be supplemented by information that can only be provided by the contractor, in which case construction work cannot be carried out until the implementation of the design is completely set out and approved by the Consulting Engineer. AA relied on part of paragraph 3.2.1 of the BSRIA Technical Note TN 8/94

"In practice, building services design is not a discrete activity with neatly defined edges carried out by a single company or individual, but is more typically an evolving process to which professional designers, specialist designers, manufacturers, installation managers and site tradesmen might contribute ...

Responsibility for some element of design is normally allocated to the installing contractor via an instruction that they produce drawings ..."

Mr Bartlett was right in saying that in practice on a project of this kind installation drawings by the contractor would almost certainly be needed, but not so as to do the work which ought properly to be done by the consultant.

232. I do not therefore accept that the effect of the contract (or the agreement reached in November 1999) is that in the course of preparing its installation drawings TW would have to do some work which might ordinarily be called "design" in order to locate the positions of the services in the ceiling voids. Although that may have been AA's intention, it cannot detract from its obligations to RBH, unless specifically agreed. RBH may therefore have had the benefit of obligations from both AA and TW covering, for example, maintainability or the positioning of certain services. The effect of the Supplementary Annexure was in my view (and also in the opinion of Mr Dix) broadly summarised in the document relied on by AA: BSRIA Technical note TN8/94 - "The Allocation of Design Responsibilities for Building Engineering Services - A code of conduct to avoid conflict", by Mr C.J. Parsloe. The extract from paragraph 3.2.1 which I quoted above is prefaced:

"However, if the designer has been appointed to carry out a full design including spatial co-ordination, then the amount of design responsibility allocated to the installer will be minimal, possibly extending no further than that for supports and fixings."

In any event in the absence of some reasonably clear provision in the contract (e.g. where the contractor is left to decide how to meet certain performance requirements and is given the freedom to do so, such as where the choice of plant or equipment is left or left initially to it), a contractor working under the standard JCT contract conditions is basically not responsible for the conceptual or functional design, i.e. for the fitness of the work or services (unless selected by it), or the practicability of accommodating services (for example from the point of view of accessibility for maintenance). Mr Dix rightly said: "if you enter into a dispute whereby the services will not fit, then I do not think it is the responsibility of the contractor to resolve that issue"..

233. That basic position is of course qualified since, first, fundamental obligations, such as using good workmanship and skill, carry with them duties in relation to design matters, for example the duty to point out actual or likely faults that would be apparent to a competent contractor and, in certain cases, even not to carry out a design and to vary a design which is actually or potentially dangerous. The contractor has of course to determine how physically the work or services are to be installed to meet the drawings, the instructions issued and other requirements of the contract. The consultant's design must however be feasible for otherwise, as discussed, the contractor will be entitled under clause 5.4 of the JCT conditions to "such further drawings or details as are reasonably necessary …. to enable the Contractor to carry out and complete the Works in accordance with the Conditions." If it is feasible then the contractor is responsible for achieving it and is not entitled under clause 5.4 to be told how the design is to be implemented. It is only where those requirements are not given or to be inferred and if the contractor is not entitled to further instructions that the decision will rest with it. Thus, secondly, the contractor may be left with a measure of design, e.g. the positioning of services within a duct or other confined space so that there is ready access to those most likely to require it, or the sizing of pipes or ductwork where there is a change of direction or level. Since there may be various ways of achieving such objectives, contracts, such as that between RBH and TW, commonly make provision for the contractor's intentions to be presented for vetting. Thus the contractor's installation drawings have to be submitted for approval in case its solution conflicts with the client's needs of which only the client's consultant may be aware, in addition to preventing ordinary errors such as taking a pipe up and over a duct which could create an air lock ("the engineer's worst enemy" as Mr Mackenzie said). The BSRIA Technical Note is of course expressing common practice in paragraph 3.2.1 when it says also that "responsibility for some element of design is normally allocated to the installing contractor via an instruction that they produce drawings". However that normal practice was in my view displaced at this hospital since it is clear that AA was responsible to RBH for a very high degree of design for the services in the ceiling voids and other areas where co-ordination was needed. This was borne out by Mr Mackenzie's opinion that as regards congestion and the degree of accuracy with which the positioning of services was to be shown:

"….the onus on the consulting engineer, I believe, is to demonstrate that the services will fit. Then the contractor may adjust it slightly for his own purposes. If the services do not fit or cannot be made to fit, then I would consider that that was the responsibility of the consulting engineer." [emphasis supplied]

234. The parties' agreement as recorded in paragraph 14 of the trial certificate of November 1999 is unaffected by this conclusion. That left the dividing line between co-ordination and installation to be determined: In my judgment that border has in principle been correctly delineated by RBH and not by AA. There may still be areas where the line may depend on the professional judgment of the engineer, as Mr Dix accepted, and if that judgment is reasonable and is in harmony with the requirements of the agreement with the client then the engineer will not be in breach of the contract of engagement. However that does not mean that the difference between AA and RBH remains one of the degree to which the co-ordination drawings should show the actual positions of the services. The fundamental issue remains whether the services should have been able to have been installed in positions as shown on AA's drawings, with an allowance for tolerances (to follow one of Mr Dix's answers in cross-examination). It follows that in my judgment the conclusions of Mr Dix and Mr Down (and of Mr Parsloe of BSRIA) in so far as they depend on that basic view of the responsibilities of AA are right and those of Mr Edwards (and Mr Mackenzie) are wrong. It also follows that the letters upon which RBH relied, instances of which I have given, constitute admissions from which in any event I find that AA was in breach of its engagement in that it did not provide co-ordination drawings that showed the information required by its contract with RBH. I now consider in any event to what extent AA's drawings lacked clarity, i.e. whether TW was justified in complaining that it did not receive, either on time or late, drawings of the quality that it ought to have received. It will be necessary to look again at times at some of the period traversed when the issue of timing was considered.
235. Some self-evident points may be repeated. First, co-ordination drawings for a hospital are necessarily complex and thus likely to contain some errors. This was naturally accepted by Mr Dix. Secondly, AA was under a duty of care, not of guarantee, and its performance is to be judged by the standards of reasonably competent professionals. Thirdly, on the other hand, there is a distinction between the giving of advice and the production of drawings where the obligation is to provide a product and the exercise of reasonable professional care and skill allows only a limited degree of minor errors, the number of which in this instance is further conditioned by the need to provide TW with usable drawings by the due and agreed dates. Fourthly, and allied to this previous point, AA was appointed for their expertise in this field, it knew how important it was to the success of such a project (which had been competitively priced) that the contractor should get all the information to which it was entitled on time and with the minimum of error. Mr Dix rightly pointed out that in relation to services within the ceiling void where there was no room for altering arrangements, a perfect set of co-ordination drawings would show the services in their allotted position, and that most contractors would be reluctant to make any changes as they might be responsible for the consequences. If the contractor worked to the drawings then any problem should clearly reside with the consulting engineer. In other areas the contractor would be less reluctant to propose a change to simplify its work or to suggest an alternative and possibly cheaper item. It is not in dispute that on this project the M&E installations above the ceilings, in particular, would have to be extensive and congested. Co-ordination and installation was therefore all the more important and, as AA suggested, might possibly be more exacting than other typical hospital projects, although Mr Dix thought that it was no more complex than many. I certainly did not conclude from the evidence of any of the witnesses that it was unusually complex. Thus I do not accept that AA would be allowed more errors than normal; if anything, the reverse would be the case. I have already dealt with AA's ostensible acceptance in early 1987 of this requirement. So in my judgment in all these circumstances the degree of latitude that is to be afforded to it is not great. Fifthly, there was agreement between the experts that full dimensioning of M&E services was not normal practice
236. In order to establish, not only that AA did not comply with its obligations, but that TW's progress and completion was affected by inadequacies in AA's drawings, RBH called four witnesses who had been employed by TW or Taymech (as I have mentioned): Mr Lawrence Hall, Taymech's deputy project engineer, Mr P J Hyde, Taymech's deputy project manager (from January 1988); Mr Stanley Drummy, TW's electrical contracts engineer (who had considerable experience); and Mr R W Edgeley, TW's senior project engineer, a public health engineer. Because of the problems with AA's drawings Mr Hall corresponded with AA and Mr Edgeley was responsible for the site. As a result of RBH's settlement with TW, the assessment of their evidence did not have to be qualified by some interest in the outcome of these proceedings. It was in places necessarily general and affected by the years that had passed since the work took place. Mr Hall, for example, was not involved in detail and much of his witness statement was a recitation of what could be read from the documents to which he referred or from which he took extracts. Nevertheless in the areas where he had direct knowledge I found Mr Hall convincing and persuasive. He described the position at the start:

"Preliminary co-ordination drawings for Zones 3, 4 and 5 of Level 1 were issued by AA on the 3rd, 13th and 16th of July 1987 respectively. Upon issue of the preliminary co-ordination drawings two of our draughtsmen set to work to produce working drawings from the information presented. It soon became obvious that the preliminary co-ordination drawings contained insufficient details to enable our draughtsmen to make a meaningful start and the work undertaken by these draftsmen in relation to those drawings was abortive. The problem with the preliminary co-ordination drawings was that they only showed services having been superimposed one on top of another with no indication of the relationship of one service to another. Further, only a minimal number of sections were provided and these had only been provided for lightly serviced points. Apart from the drainage, AA did not provide levels for any of the services."

He explained what was thought to be part of the reason for the situation:

"We believed that the manner in which the co-ordination drawings were being issued indicated that AA were co-ordinating the works on a zone by zone basis rather than on a floor by floor basis. … If drawings are co-ordinated on a zone by zone basis and, if when producing a drawing of a zone an internal co-ordination clash arises, the solution devised to overcome that clash may have co-ordination ramifications in neighbouring zones which may not be identified until the services are actually installed."

237. Mr Hall then recounted how Taymech draughtsmen from August 1987 found numerous co-ordination clashes which were brought to AA's attention by co-ordination queries ("CO"). This was also the subject of a report by himself and Mr Walker which was discussed at a site meeting held on 25 August 1987. The report stated:

C. Co-ordination.

All level 1 drawings received to enable Taymech to produce working drawings.

Taymech have identified many areas where major clashes occur, query sheets attached. The time involved in identifying the problems and then the Consultant resolving the same effectively delays the information flow agreed during the meeting with the Consultants of 12th August 1987. This will have a "knock on" effect on Taymech producing working drawings which could affect the programmed start date."

The reference to the meeting should be that of 11 August at which Mr Hall and Mr Walker were presented by Mr Edwards and Mr Hammond with issue dates that AA would meet. As Mr Hall said in his evidence TW had no or insufficient time to produce and get approval for its drawings as AA 's drawings were much less detailed and thorough than TW had expected on 11 August. Mr Drummy said also that, in relation to the electrical services, the drawings issued in mid August

"were co-ordinated in name only, [they] showed the services superimposed over one another and contained a minimal number of sections within the zones. The sections provided showed some co-ordination details but were too few in number and did not show any detail at the corridor intersections, at electrical cupboards or at the services risers (the key areas where space was at a premium and consequently co-ordination was vital). The AA drawings also failed to show the final conduit routes to equipment and accessory positions. I consider that AA should have established the conduit routes in order to calculate the cable size and type relative to the environment in which it was to be installed, the length of route and the effect of the resulting volt drop. It is standard practice for the designer to provide some details of how conduits were to be routed from the soffit down to the electrical trunking, which was at the bottom layer of services in the corridor. AA's drawings failed to show these routes."

Mr Drummy explained in his witness statement and when cross-examined that he was not saying that as regards electrical services the drawings were generally deficient and that he was concerned with the areas of complexity where he expected sections to be given. Later in his evidence he gave examples of earlier conflicts with foul drainage (some of which were not persuasive) and of the need to lower the false ceiling to accommodate the foul drain in zone 4 of level 1 which nevertheless protruded 37mm. Similarly he provided a good further illustration from 1988 of the impossibility of installing some ladder racks required by AA's drawings as there was no room; I agree with Mr Drummy that these were not minor matters. During August TW continued to issue CO queries (and ultimately 38 were issued). CO 10 of 27 August 1987 was examined by the experts. The clashes raised by TW in it have been substantiated by all the experts although there remained disagreement about the weight to be given to them.

238. Mr Drummy also said that TW's draughtsmen on site, on receipt of the co-ordinated drawings for Level 1, attempted to produce working drawings for the mechanical and electrical installations but found numerous clashes which had to be referred to AA for their instructions. Mr Drummy also said that in his experience it was highly unusual for co-ordinated drawings to be issued on a zone by zone basis as they were usually issued on a floor by floor basis, because co-ordination can only ever be effective if the services are co-ordinated for the entire floor. "To tackle the task in this way, it appears to me, could only ever lead to clashes and problems with the alignment of services across zones. These problems were all subsequently encountered on the job". His witness statement set out the dates upon which the drawings under consideration were issued by AA. Some insight into the position may be gained from a letter that AA wrote on 27 August in which it said:

"our drawings indicate the design intent but do not show sufficient detail for installation purposes without additional detail being added".

239. Mr Walker wrote to WGI on 28 August 1987 to say that TW had been unable to complete any of its working drawings for level 1, zones 2, 3, 4, or 5 and to record the dates when the relevant co-ordinated drawings had been received on site (8 August, 3, 13 and 16 July respectively.) Mr Walker referred to the meeting on 11 August (the services should be installed to the co-ordinated drawings) and said:

"Two full-time site-based draughtsmen have now spent six weeks in checking the co-ordinated drawings, for zones 3 and 4 only, when producing our own working drawings. This has resulted in the generation of a large number of co-ordination queries. Although we have been using our best endeavours to produce drawings to meet the programme we consider the time now being spent in verifying these drawings in order to produce our own working drawing has now become excessive.

"Our own time allowances for the production of drawings has more than doubled that originally allocated in our estimate. We shall be seeking reimbursement for these additional costs which we will quantify when the full extent is known for zones 2, 3, 4, and 5."

Mr Hall agreed that this letter was correct and that TW had not on 11 August anticipated the sort of problems that it was encountering and that it was taking much longer to turn the drawings round.. In turn, as Mr Hall confirmed, the difficulties about the quality of drawings led to the Review Meetings, the first of which was held at the beginning of September. At the next site meeting TW reported that, although AA had a full time member of staff on site and many queries were being resolved with his help, there were still many outstanding co-ordination problems with the co-ordination drawings and, because more and more co-ordination clashes were being discovered, TW's queries vastly outnumbered the co-ordination responses received from AA who could not keep pace with the rate at which co-ordination problems were being found. Mr Hall's statement also explained the difficulties created for TW by having to issue builder's blockwork drawings based on AA's inadequate co-ordination drawings.

240. I have already dealt with the use of WOCAD. TW had other problems. It seems that PMI and Taymech thought that Mr Walker, the deputy project manager was not up to the job, although Mr Hall considered him to be more than competent. Mr Reg Barrett was brought back from retirement and took over temporarily and then stayed on for some weeks after Mr Hyde arrived on 27 January 1998. When Mr Hyde arrived he understood that TW had difficulties in producing installation or construction drawings because the drawings provided by AA did not show any line, level or dimensions and that TW had decided to commence installation work on Level 1 without having received approval of the installation drawings from AA since PMI had asked for that to be done at a meeting held 29 September. Although he was not trained as a draughtsman he verified this for himself. Mr Hyde set out the difficulties in which TW found itself and the steps that were taken to make progress, given the lack of properly completed co-ordination drawings and the disappointing contribution made by WOCAD. Mr Hyde said:

"2.10 I therefore proposed, and AA agreed, to sit our co-ordination engineer and AA's co-ordination engineer down together to resolve the clashes. Sometime in late January or early February 1988 we seconded our co-ordination engineer, Mr Honey, to AA offices to undertake pre-WOCAD investigations into the co-ordination drawings for Level 3. Working drawings for Levels 1 and 2 had either been completed or substantially completed by that date. After completion of this exercise, on the 4th February 1988 Mr Honey and AA's co-ordinator relocated to site to complete the co-ordination exercise. Whilst at the time I did not believe that we had any contractual obligation to produce line, level and dimension information for the drawings …. and as AA were at that time rejecting any suggestion from us that this was in fact their obligation, in order to resolve these difficulties at a practical level it still had to be done by somebody.

241. 11 In practical terms this exercise entailed our Co-ordination Engineer co-ordinating one zone by marking on AA's co-ordination drawing line, level and dimensions. In addition, as explained above AA's Co-ordination Engineer worked alongside our Co-ordination Engineer putting line, level and dimension on a separate zone. This resulted in a standard of drawing being produced which, in my view, was closer to that which I believe we were entitled to receive originally from AA. If a comparison is made between AA's so called co-ordinated drawings and those produced following the completion of this exercise, the deficiencies in AA's original drawings are all too readily apparent.
242. 12 From these details tracers could then produce working drawings for the various disciplines. AA volunteered the use of some of their tracers to assist in this exercise of producing working drawings provided they worked at their offices. In any event, when this offer came about I had no space available on site in which to locate additional tracers. The additional resource to produce the discipline drawings from this information was therefore shared by AA and ourselves and located in their offices in Croydon. This enabled our site draughtsmen predominantly to back track onto areas such as risers and plant room details and complete work which had been previously started then stopped as a result of the co-ordination difficulties as these areas were now also becoming critical, as they were available for the installation of our services, and if work did not commence these areas may also fall further behind programme."

He summarised the effect:

"2.15 The delay which had previously been experienced in producing the installation drawings for the horizontal services meant that it was not until about April 1988 that resources could be fully allocated to the production of drawings for the riser and plant room areas although the boiler house drawings had commenced in early December 1987. Had the M&E information been provided at the proper time and had it been of sufficient standard then the difficulties experienced in these areas could have been resolved on the drawings at a much earlier stage. As we had installed works to unapproved drawings to mitigate against further delays to the works, when approval was given alterations had to be made on site to works previously installed."

Mr Hyde accepted that TW had in fact received the boiler house drawings in May 1987 but that does not detract from his general conclusion which I consider was entirely justified. AA submitted that TW's failures were illustrated by the boilerhouse drawings, since in part it seems that by 25 June 1987 TW had overlooked their issue and TW had planned to start installation in the level 1 boiler room on 5 October 1987, and did not do so until December. However I am unable to discern the effect of this chain of events. TW's complaint related to being able to get on with all the work; no doubt there were parts that it could not do.

243. Mr Hall also said in his statement:

"Whilst throughout the construction industry there are differing views on the exact definition of the term "co-ordination drawings", what I believe is clear and indisputable in relation to all of the co-ordination drawings issued by AA on this project is that, on any definition, they were grossly under co-ordinated and totally inadequate for the purposes of preparing working drawings and builder's work drawings. … As I have already mentioned, the other significant and compounding problem was that the co-ordination drawings which AA issued were not only inadequate but were also late. I believe that AA were simply not sufficiently prepared or advanced, in terms of co-ordination of the services, at the commencement of the project. As a result we had to spend the next 12 months assisting AA to co-ordinate their drawings to a state of co-ordination which AA themselves should have achieved at the latest by the 4th of May 1987. It was the extent of the inadequacies (and the lateness of issue) and the extent of the resulting delays and disruption to the works that led to a significant part of the losses now claimed."

This was a trenchant summary of the position. It contains, as did other passages, statements which are too general, e.g. "all of the co-ordination drawings", and later: "all clashes that occurred throughout the works arose because AA failed to properly co-ordinate the services". They were self-evidently hyperbole. In cross-examination Mr Hall agreed that he really meant the majority of clashes were AA's fault. He naturally accepted that there would be other reasons, but it was never clear to me which clashes were due to any of the other reasons suggested so as to rebut the conclusion that the majority were due to AA. I do not accept AA's submission that Mr Hall's evidence was not fair. It contained no more than the usual amount of emphasis that might be expected from a person in Mr Hall's position with his experience and background who had been genuinely surprised at the number of queries created by AA's drawings.

244. AA also submitted that Mr Edgeley's extensive evidence on clashes was not acceptable. Like Mr Hall, Mr Edgeley said in his statement that the clashes which he itemised (and which were also pleaded in the RASC) were due to lack of properly co-ordinated drawings. The cross-examination of Mr Edgeley by Miss Davies did reveal that, in relation to certain instances on levels 2 and 3, he had not properly investigated the facts or certain of the principal documents before listing some of the clashes, notably where he had blamed a sub-contractor for the incident There were also some occasions when Mr Edgeley had listed a clash which had the time had been refuted by AA without any apparent riposte by TW. However I do not consider that these examples justify the conclusion that the list relied on by RBH was not supported, although if it had not been representative it might have justified the further submission that clashes had to be verified by experts.
245. That was of course done, although not by the principal experts who would have been called. Mr Down's report was generally supported by Mr Dix with certain exceptions which he noted as required by my direction of 8 May 2001. Mr Dix had started his career in hospital engineering and after he left the Health Service he worked for consultants as design engineer on a number of projects for hospitals. He came across as a highly experienced practising engineer. He had investigated and advised on the quality of design drawings produced by engineers and by contractors. His latest appointment was as the Arup Global Skills Leader for Mechanical Engineering. He was ready to accept justified criticisms. Mr MacKenzie graduated in 1973 and become a member of the Chartered Institution of Building Services Engineers which led him to being a Chartered Engineer. He had been employed as an executive engineer by Hoare Lea & Partners for some 10 years and before that by AA. His recent experience had been on air conditioning, and heating and ventilation systems. He had not been involved recently in hospital design work, although he had assisted Mr Edwards over a dispute at Guy's Hospital. He accepted that his knowledge of hospital projects derived essentially from that work, and not from any practical design work as a project engineer. Indeed he made it clear that there were certain "issues in the case he had not studied in detail and/or of which I have not had career/design experience", including large scale/multi service hospital design, health services design procedures (e.g. Capricode), budgets/costings, the Cundall Johnston Report, the BSRIA Report, the Advice claim, and the extensions of time. He was therefore not in the same league as Mr Dix. He had contributed to sections 9 ("What Went Wrong with the Construction Contract), 10 (the timing issue) and 12 (the quality issue) of Mr Edwards' report, and was responsible for Appendices I to IV. He had also commented on other sections which had been written for Mr Edwards by another assistant, Mr Amos. Perhaps because of his close involvement in the detail of Mr Edwards' report or because of his former connection with AA or because of the fact he was propelled to give evidence at short notice, I found Mr Mackenzie from time to time unduly defensive. Nevertheless he had a good grasp of detail, at times better than Mr Dix (as might be expected, given their respective roles in the preparation of the reports to which they had contributed).
246. The pre-trial agreements between experts examined the items queried by TW for Level 1, Zone 4 and Level 3, Zone 2. They were agreed to be representative samples. There were 43 clashes in the former. The experts tried to examine each jointly but since it took about an hour to analyse each the work was never completed. Mr Down had produced (and Mr Dix endorsed) PGD01 which showed the location of all the clashes found by TW. This too was agreed. The experts agreed that between one half and two thirds were reasonable queries (51% in the former case) and that they had no reason to believe that these proportions would be any different elsewhere. They also agreed that the standard of the co-ordination details issued by AA in the form of supplementary sketch drawings, largely in response to TW's queries, appeared satisfactory. Mr Dix, Mr Stephen Edwards, and Dr Arnold agreed that the M&E co-ordination drawings prepared by AA did not show all the information that they would have expected such as sizes of pipes, ducts etc, although Mr Edwards thought that to show the sizes on accompanying drawings was sufficient compliance. Mr Dix and Dr Arnold thought that the missing information demonstrated that the drawings had not been properly co-ordinated. They all also agreed that there were some errors and omissions in the drawings but parted company over whether the drawings were as a result inadequate. Mr Edwards believed that they were not, but the other two experts were of the opinion that they were inadequate for their purpose and did not comply with the Supplementary Agreement.

Grids, Dimensions and Sections

247. I have recorded that there was agreement between the experts that full dimensioning of M&E services was not normal practice. Even if full dimensioning on the co-ordination drawings was not needed Mr Dix made it clear in his report and in evidence that some means had to be provided. I have referred to his views on the meaning of clause 3(b), with which I entirely agree as they are manifestly in accordance with the words and tenor of that document and the remainder of AA's Agreement. He thought that the minimum required was:

"Drawings to a scale of 1:50, with pipes/ducts above 150 mm drawn double-line and pipes/ducts above 50 mm to accurate centre-lines in plan. These should include either critical dimensions or a 300 mm grid to allow measurement of location, or critical dimensions and with inverts, gradients and cross-sections drawn to show levels."

He pointed out that 300 mm grids were to be used if the critical dimensions were not stated on the drawings. It was clear to me that Mr Dix was not of the opinion that a superimposed grid had to be used but it was an option which would achieve dimensioning that was essential. Mr Edwards said that he would have used the structural grid and that he did so in the 1980s. The structural grid was 6750 mm x 7200 mm. It was put to Mr Dix that Mr Mackenzie could not recall any job where the contractor's dimensions were not taken from the structural grid but Mr Dix pointed that a contractor would take the easiest course available and that such a practice was usual on non-Health Service work. Mr Dix rightly pointed out both that the detail required by the Supplementary Annexure work required more and that on AA's drawings the structural grid was barely legible, i.e. there was a lack of the clarity that AA was obliged to provide. He said that it was in any event often an imaginary line between columns whereas the contractor would take a dimension from a wall. In my judgment Mr Dix's reasons, especially under cross-examination, showed that both as a matter of practice and of good practice a superimposed grid was required (or some other means). Since I find that neither was provided AA's drawings were in this respect not of the required quality. Mr Edwards also said in his report:

"The dimensions needed to locate the M&E engineering systems could be scaled on AA's co-ordination drawings and reference could also be made to the chosen grid. I consider that dimensions can be scaled from AA's co-ordination plans (which were drawn at 1:50) to within plus or minus 50mm and from AA's co-ordination sections (which were drawn at 1:20) to within plus or minus 20mm. I consider that these tolerances provide adequate precision for an installer, who is then to prepare the actual installation drawings."

Mr Mackenzie agreed with that statement but said that in fact accuracies of ± 50mm or ± 20mm were not critical and the latter might be tighter than would have been needed. He also agreed that sufficient sections had to be provided to show changes in level for otherwise the contractor would assume that there was no change in the level of a service from that shown on a section, and that any change in level from that shown on a section would have to be approved by the consultant. These answers reinforce the conclusion that I have reached. It must be noted that from November 1987 AA issued a significant number of additional sections and part plans showing, inter alia, dimensions, invert levels and details of sets. An example is at Appendix 7 to Mr Down's report.

176A. Mr Dix produced drawing TRD-01 to demonstrate, amongst other things, where sections should have been shown by AA for zone 4, level 1. It superseded Mr Down's drawing PGD-02 which had formed part of his report and which showed the location of the clashes relied on by TW and to that extent was taken to be an agreed record. Mr Dix did not himself think that the number of sections advocated by Mr Down were all needed and therefore prepared TRD-01 to show where additional sections should be. That drawing showed the two sections provided by AA (in red dotted lines); three other further sections (in green) which were the minimum number of additional sections that Mr Dix thought ought to have been incorporated into the drawings to have provided sufficient information to enable the contractor to have properly located the services; these sections were fewer than those Mr Down had shown as desirable on PGD-02, although two were in the same position as Mr Down's and the third was in a very slightly different position. The point was that less than the minimum number of sections had been provided. Mr Dix did not show optional sections since he did not see the value in littering the drawing with any number of desirable sections, although he did not disagree with Mr Down's view that such sections might have been provided. However RBH no longer relied on PGD-02 for this purpose so it was of historical interest only in understanding Mr Dix's views with which I am concerned. RBH did not maintain that AA was in breach of its contract in not providing such additional sections as they were said only to be desirable. TRD-01 was served early in the trial, and, although then formally objected to, by the time Mr Dix was called, AA had had adequate notice and asked Mr Dix about it. Drawings of this nature are common place in trials of this kind and the parties' advisers have to be ready to deal with them and have to deal even on short notice (in this instance the notice was generous for a party such as AA and its experienced advisers). In my judgment RBH is right in its reason for disposing of AA's objection that RBH should have put forward a set numbers of sections. It is not so much a question of numbers of sections but the clarity of drawing. Mr Dix thought the drawings were unclear. He illustrated that by his choice of sections. Others might have had more. If AA suggested that none was required then I reject it. It is clear to me from the drawings referred to in the evidence and which I examined that there were significant (and not isolated and excusable) areas where there was a real lack of clarity. It is true that in certain instances (match line errors were perhaps the best example) further detailed investigation showed that Mr Dix's original surmise was mistaken (as he readily agreed) but had the drawings been really clearer such false impressions should have been rare; they were not. I do accept that AA's submission that the exercise showed how easy it was to make mistakes when dealing with the detail of drawings. Whether a drawing has the clarity required is a conclusion of fact, informed as it must be here by the views of experts and of those who were there at the time. The latter were in my judgment of one mind: the drawings were unclear. AA provided more and other steps had to be taken to overcome their lack of clarity, thereby meeting TW's complaints (e.g. engineers working along side TW's personnel, the joint, albeit unsuccessful, use of WOCAD). The additional drawings were listed in Appendix 7 to Mr Down's Report. It therefore also followed that the lack of clarity was not made good where ducts and pipes changed level since failures to use draughting conventions properly meant that this was not done, as was demonstrated to me by Mr Dix from TRD-01. He also said, with reason, when taxed on this subject by Mr Bartlett.

Q. An experienced person reading a drawing takes this sort of thing in their stride?

A. You cannot take it in your stride when you do not know whether a duct is going above or below, or a pipework is going above or below. You cannot take that in your stride, because you are left wondering what it is to be.

Q. It is nearly always obvious what the answer is, is it not?

A. No.

Q. And you are making a meal of a lot of trivia, are you not, Mr Dix?

A. No, I am not. The drawings that were produced by AA were extremely difficult to interpret. That is not just my opinion, it is Dr Arnold's opinion, where he states that the drawings have significant inconsistencies, and so do Cundall Johnston."

I do not consider that Mr Dix was "making a meal of a lot of trivia", any more than BSRIA or Cundall Johnston did. He was a highly experienced and balanced engineer. Had there been only a few "trivia" no one would have complained.

248. The purposes of TRD-01, as Mr Dix explained in cross-examination, were to show, as an example, that AA in producing the co-ordinated services drawings had done only simple overlays of the single service drawings. He accepted that if the single service drawings had been properly co-ordinated then that course would not have been wrong and would have met the requirements of the Supplementary Annexure, but in his view AA had not devoted a proper amount of care and attention to combining the services in a manner that would result in a co-ordination drawing. In Mr Dix's view proper thought had not been given to overlaying the pipework and the ductwork such that maintainability was not achieved and pipes and ducts did not miss each other. There were in fact at least 22 clashes on this level, as claimed by TW and as agreed, with more on a further section (DD) that Mr Dix produced. When looking at the clashes complained of by TW Mr Dix said that further errors were found which may have contributed to the problems of co-ordination experienced by TW. Mr Dix firmly rejected the suggestion that they did not cause anyone any genuine difficulty:

"A. No, I would not agree with that. This drawing is -- the intent of this drawing -- what this drawing should have shown, it should have been the drawing that told Taymech where to put the services. It may not have said what size the pipe was, and it may not have said always what it carries, i.e. whether it is a drain, et cetera, et cetera. It was the drawing that Taymech were to use to produce their installation drawings, and to do so they had to interpret this drawing, which is an enormous task. I found it an enormous task, and Dr Arnold found it an enormous task, and Cundall Johnson found it an enormous task."

and

Q. ….. Just as a matter of interest, how long roughly did it take to do that analysis of section DD?

A. To ascertain the dimensions off the co-ordinated layout, and compare them with section DD as shown on AA's drawings, it took one of my technicians around about a day to do that and then it took me some half a day to ensure that he had actually got it right because of the degree of difficulty we had in interpreting the drawings."

and

"A. No, you simply cannot understand the level of the ductwork. I know, because I have been through the process myself, and spent many, many hours on the AA drawings. You simply cannot determine the level. You can make assumptions, but assumptions are wrong.

Q. After a short period of familiarisation, Mr Dix, with co-ordination drawings, you build up a three-dimensional picture in your head, do you not, and you start to understand where everything goes, and errors of this kind are then obvious, are they not?

A. No, they are not. You cannot build up a three-dimensional picture if the information is inconsistent and inaccurate.

Q. You would not have any difficulty building up a three-dimensional picture from figure 7, would you?

A. It is a relatively simple drawing. You could not get a complete picture from it, and I guess that there are sections associated with, inferred sections associated with this, I think, that would help. What I am saying is that when you look at the sections of AA's drawings and the plan drawings, you cannot build up a three-dimensional picture. I could not build up a three-dimensional picture, and neither could Dr Arnold."

and

"Q. Have you really tried to be fair to AA, Mr Dix?

A. Of course I have tried to be fair to AA.

Q. Where there were clashes what was required was minor adjustments, was it not?

A. Sometimes, yes.

Q. Generally speaking, yes?

A. Sometimes, yes. As I say, it is very difficult, because until you sit down and analyse the drawings you cannot build up a 3D picture that is necessary. In fact, Taymech should not have had to build up a 3D picture; they should have been able to take AA's drawings on face value and add the information that they needed to add to them to produce installation drawings. That should not have resulted in the relocation of services. It quite clearly did result in the relocation of services and that took an awful long time to resolve."

and

"What I would have expected to have seen are the services moved in a fashion that co-ordination was obvious; that somebody had given some thought to overlaying the pipework and the ductwork such that it meant that maintainability was there and that pipes and ducts missed each other. They clearly did not because there were some 22 agreed clashes from Taymech at this level. And I think we probably identified more on the section DD that we have produced."

249. On the other hand in his report Mr Stephen Edwards said that AA's co-ordination drawings were prepared with all reasonable skill, care and diligence. Unfortunately, unlike the work of Mr Dix and Mr Down, his report did not provide enough reasoning to support this conclusion so that in this instance I echo the words of Jacob J in Routestone v Minories [1997] 1 EGLR 123:

"What really matters in most cases is the reasons given for the opinion. As a practical matter a well constructed expert's report containing opinion evidence sets out the opinion and the reasons for it. If the reasons stand up the opinion does, if not, not."

Mr Dix's report was criticised on the same grounds, but in my judgment, without foundation, certainly once his evidence before me is taken into account which left me convinced both that his conclusions had been arrived at rationally, whatever the seeming, but pardonable, brevity of bits of his report, and that his reasoning was valid. To take two of the paragraphs in his first report identified by AA: para 5.10 in fact instances the clashes which justify the conclusion and para 6.5.10 in so far as it contained opinion (since there was also comment which is not relevant) were amply supported by Mr Dix's evidence in court. I was left with the impression that Mr Edwards had relied on the work done by Mr Mackenzie and had not himself investigated the detail for it is not possible to accept conclusions such as the drawings "showed the approximate sizes and positions of pipework and ductwork", without dealing with RBH's case that the positions should not have been "approximate", or explaining the degree of accuracy comprehended and the clashes were "mostly of a minor nature". Mr Edwards' thinking here was almost certainly influenced by the importance he placed on the ACE Guidance Note which, as I have explained, was misplaced both in law and as an indicator of good practice.

250. Obviously AA could not have achieved and was not obliged to achieve perfection. As I have emphasised, the duty to exercise reasonable professional skill and care is not a warranty that drawings will be free of errors. On the other hand the situation in which the co-ordination drawings had to be produced and AA's apparent readiness to do so affects the degree of skill and care required in the circumstances. Mr Dix readily acknowledged in paragraph 6.5.4: "It would be unreasonable to expect that any complex co-ordination drawing would be totally free of co-ordination clashes". He also accepted that it was quite probable that the more complex the job, the greater would be the number of queries. It was also not surprising that examination of the work of Mr Down and Mr Dix and others (such as BSRIA) showed that even experienced people could make mistakes in reading the drawings (as noted by AA in para 58 of its closing submissions), and that some clashes thought to be present did not exist (or had not been the subject of complaint). If anything in my view this reinforced RBH's case. If the work was that complex then care had to be taken by AA to ensure that the drawings contained an absolute minimum of errors for otherwise TW's first scrutiny might not reveal all the clashes. I do not consider that TW was expected to allow for the additional perusal of a drawing. The object, as Mr Dix said, was to provide "the amount of information that enables a contractor to get on with his drawings, in a timeous manner". In addition the very nature of the work required errors to be avoided, as Mr Dix pointed out:

"Q. You have not identified any clash that was serious enough to require a major modification either to AA's designs or to the building structure?

A. No. It comes back to this process we were talking about earlier on, that this is a very complex building with a great deal of services, restricted ceiling access and ceiling voids, therefore it would only take minor errors to give rise to significant problems in getting the services into the building.

Q. Mr Dix, the AA co-ordination drawings were adequate for that purpose?

A. They were not."

Q. You have not considered in detail the question of the impact of the queries on the contractor's drawing exercise, have you?

A. No, I formed a view based upon the correspondence, based upon the revised drawings that AA produced, based upon the number of queries, based upon the sketches that AA produced throughout 1987, to resolve those queries, and I formed the view that it must have been extremely difficult for Taymech to have produced proper installation drawings off that information."

251. If highly experienced people could not even now be sure whether or not there was a clash then I do not consider that the drawings showed clearly the relationship of the services such that TW could use them for construction purposes.
252. Numerous clashes were relied on. They could only be sampled. RBH's case was in my view graphically supported by a telling series of answers and observations by Mr Dix in cross-examination:

"Q: What I am trying to find out, Mr Dix, is why you say you had such difficulty interpreting the drawings; whereas Hoare Lea & Partners' position [Mr Edwards and Mr McKenzie] was that they did not have the same difficulty. Is it because you and they have approached it with different assumptions as to what the drawings were intending to show?

A. I think in the hours and hours that we have spent with Hoare Lea in expert's meetings going through the precise location of services, I think Hoare Lea must have experienced the same difficulty. Because we spent hour upon hour looking at each individual clash. This is the reason why, of course, we did not get through all of the clashes. Time just would not have allowed us to do that because of the difficulty in interpreting AA's drawings with an accuracy that was sufficient for the Court.

Q. You had a different way of looking at them from the way that they had?

A. No, I do not think I did. There is only one way to look at them: you either show the allotted position or you do not show the allotted position.

Q. When you were looking at the clashes, you were in a very different position from the Taymech draughtsmen obviously --

A. I was indeed. I was in a much better position because Taymech had said, "Here are the clashes." Taymech draughtsmen, of course, had to go away and find them.

Q. Well, you were looking at individual points that Taymech had identified as alleged clashes, were you not?

A. Yes.

Q. Whereas Taymech's draughtsmen would be reading the whole drawing, building up a three-dimensional understanding of it and a mental picture of the whole zone in order to produce their installation drawings?

A. I was doing exactly the same.

Q. The nature of the exercise is different, is it not?

A. No, not really.

Q. Because you were just looking at clashes?

A. No, I was looking at a clash and determining whether the clash was a clash. But, in order for me to do that, I had to follow the same exercise that Taymech would have followed. In other words, I would have looked at the drawings at my disposal and said, "Where do AA intend to put this duct?" And I would use the information available to me. I certainly did not use: "I think that must be wrong; I think I ought to move it over here" because that would be wrong."

253. I am quite satisfied, having heard Mr Dix (and Mr McKenzie) and having considered Mr Stephen Edwards' views, that the exercise that was carried out by the experts reproduced the situation facing TW. The experts had to get the whole picture in order to see whether there was really a clash, i.e. that TW was entitled to seek further instruction by way of a query and was not obliged to resolve the problem itself, and to proceed with the installation drawings. I do not consider that I could attribute to TW's draughtsmen greater practical expertise. Obviously others knew that TW thought there was a clash. I therefore accept Mr Dix's account as vividly illustrating the problems which TW faced. AA relied on the experts' agreement that, based on the zones that they examined, between one half and two thirds of the query items for the two zones studied were reasonable queries, so that by extrapolation, AA contended there may have been some 400 items of clashes or reasonable queries on the co-ordination drawings for the whole building, which given that a drawing might have 2000 pieces of information, did not evidence lack of care. (This estimate is subject to adjustment for the higher levels and is in any event somewhat forensic.) Mr Stephen Edwards in his report (and Mr Mackenzie) said that the queries raised by TW, both in number and nature, were reasonably justified and were not unusual. The opinion that TW was justified seems to me to assist RBH. As Mr Dix pointed out, when questioned, the complexity of the building meant that a minor error could have significant consequences. Thus even though no query revealed a clash serious enough to require a major change to the design (not itself ever alleged by RBH), numbers are in themselves relevant only because as TW's evidence established, each one interrupted or was likely to interrupt the TW draughtsman's work whilst it was resolved. TW therefore understandably must have lost any confidence that they might have had in AA's drawings. Understandably more checks had to be made.
254. It was also suggested that 400 or so was not inordinate, given the complexity and extent of the services and the pieces of information. It is also not necessary in my view for RBH to establish some base line so that TW's numerous reasonable queries may be seen to be normal or abnormal. TW, and especially Taymech, were used to encountering some errors in drawings. Had they been of the usual order a services contractor such as Taymech would not have made them the subject of complaint, let alone a claim. They would have been ridiculed and they would have had difficulty in convincing AA and WGI of a legitimate claim. In opening Mr Edwards-Stuart drew attention to the position of Taymech. He said (in words that were later thrown back at him by others) that "[Taymech] did not initially adopt the rather aggressive Taylor Woodrow approach of putting in a claim every time someone sneezed, and certainly during 1987 they were trying to get the job done without, as others have said in this case, rocking the boat". This was percipient and accurate observation with which I fully agree. Plainly the circumstances were not usual. The number of queries raised by TW formally by CO were not extensive and do not include queries that were resolved by engineers working alongside each other on site or by the WOCAD process. In paragraph 4.11 of his report Mr Dix crisply and, in my view, accurately, summarised the effect of AA's obligations:

"In the final analysis the crucial test of co-ordination drawings is whether the contractor can rely on them substantially to show where the services are to be installed at construction stage. Little input should be required by the contractor in the production of the contractor's installation drawings by way of determining the position of the services."

I also agree with RBH's submission that the number and nature of the clashes show that no adequate attempt had been made to check that the various services were co-ordinated and that they created the situation in which moving a duct or pipe to resolve a clash could cause another clash elsewhere. The reason was that AA had not exercised sufficient skill and care to ensure that the single service drawings were co-ordinated. As a result AA's co-ordination drawings, which were simple overlays of the single service drawings, were not themselves properly co-ordinated, as Mr Dix said when cross-examined. In addition until the clash was resolved by AA TW's draughtsman had to move to another section. The facts therefore speak for themselves. AA had to get the drawings out in a hurry and so more errors than would be tolerated were likely to occur and in my judgment, did occur. AA did not at the time castigate TW for exaggerating the problems although they were played down. WGI thought that TW were faced with an unreasonable number of queries.

255. It is neither necessary nor practicable to set out findings in relation to each of the clashes or other faults relied on by RBH. When individual clashes relied on by TW and in turn by RBH came to be examined it was inevitable that discrepancies would be found (and sometimes the supposed clash was not found). Mr Dix acknowledged that it was easy to make mistakes, i.e. the possibility and reality of errors in his work. I am satisfied that he made every effort to avoid them. I have to say that the mistakes revealed or said to be revealed in cross-examination appear to me to be minor and in some instances readily understandable or explicable, not least because of the lack of any drawing register so that it was difficult to keep track of revisions. In one instance it became clear from the investigation that AA had indeed failed to co-ordinate the drawing. Mr Dix also found clashes that had not been recorded by TW. Of one he said: "It was the drawing that Taymech were to use to produce their installation drawings, and to do so they had to interpret this drawing, which is an enormous task. I found it an enormous task, and Dr Arnold found it an enormous task, and Cundall Johnson found it an enormous task".
256. The very process by which the clashes were exposed made it very clear to me how much time and effort had been spent by Mr Dix and his team and by the experts collectively. It threw real light on what TW must have faced as it attempted to unravel the drawings (whether or not traced) as they emerged from AA, a task made worse by AA's failure to issue on time. TW's report from BSRIA was also found to contain errors. Under paragraph 55.1 of the RASC RBH relied on some 38 co-ordination queries pursued by TW; under paragraph 55.2 729 clashes or errors were alleged by TW; and paragraph 58 alleged other clashes during installation alleged by TW. These incidents were not cumulative but overlapped, as is most easily seen from PGD-01 where many of red and blue markings are in the same areas.

Ceiling Grilles

257. Mr Dix's drawing TRD 01 showed that the positions of the ceiling grilles on AA's drawing for level 1, zone 4 (668.1/C/1H/04) differed from those shown on AA's co-ordinated ceiling layout (668.1/CC/14 of Sept 87) by about 200-600mm, i.e. well outside the permitted tolerances. AA submitted that RBH could not refer to or rely on them as they had not been pleaded and had not been covered in any expert's report or witness statement. AA pointed out the allegation fell outside the case particularised in and limited by the Answers to requests for further and better particulars of paragraph 54 of the RASC and was not within the general words of paragraph 54.2. As it was an allegation of differences between an AA co-ordination drawing and a drawing of a different category which had not been mentioned in paragraphs 54-55. AA said that it would be prejudiced as a result. I noted the objection and heard what had to be said about the drawings. RBH submitted that its case on the discrepancies came within the ambit of the general complaint at paragraph 54.2 that the co-ordination drawings were only indicative of AA's design intent, but did not show sufficient detail. Further, because there were no co-ordinated ceiling layouts, the co-ordination drawings on their own did not enable TW to see that the services (including the grilles) could be installed in that they were not related to the ceiling grid: this was another general complaint in paragraph 54.2.
258. Ordinarily a point like this would be allowed. It is typical of the development of a complex case and where, as here, the parties are represented by highly experienced solicitors and counsel who can readily handle a new point without usually having to have recourse to experts, the introduction of what is no more than a further illustration of the basic complaint would and should be taken in one's stride. Over-particularisation is the bane of many pleadings in the TCC. Pleadings exist to serve and not to dominate the parties. The CPR and its overriding objective mean that, whilst distinctively new or altered issues may not be permitted if made late or at the trial, other variations are likely to be permitted if it would be just to do so or unjust not to do so. In considering the overall question of whether or not it is just it is necessary to look at the circumstances, such as the resources actually available to the parties, which in proceedings in this court, generally mean that a relatively relaxed attitude can be taken to changes since if the parties' interests are in the right hands the progress of the case is unlikely to be significantly dislocated. Thus if the point has been discussed between experts or, as frequently happens, the experts are able to express an opinion on it at short or no notice, then the fact that it has not been pleaded or is said to take a party's legal advisers by surprise is not a material objection since the interests of the parties themselves come first. In TCC proceedings the pleadings should set out the issues which have to be considered by experts but if, in the course of the pre-report discussions between experts or otherwise, it appears that they do not do so the need for amendment will be noted and any party affected will be notified straightaway of the proposed amendment. Unless there is good reason for departure from normal practice the amendment will be agreed and it would only be in an exceptional case that the experts would not cover it in their further discussions and reports. If in doubt they should seek directions from the court since their primary duty is to it and not to a party. If the amendment is not agreed then the court will decide at the PTR or at the outset of the trial.
259. However this part of RBH's case was not signalled in this way. Given the state and evolution of the pleadings it ought to have been pleaded for, although I accept that it falls within paragraph 54.2, it should have been pleaded along with other details e.g. by way of supplementary answer, or at least formally notified so that it could be considered by the experts (the adequacy of sections was always on the table and is in a different category). This was needed since the discrepancies had not featured in TW's claim so their relevance would have had to be explained, although their general relevance was obvious. Whatever the precise requirements of the Supplementary Annexure, AA intended the co-ordination drawings to be issued with other drawings such as the architect's reflected ceiling drawings. TW had therefore to have all these other drawings, properly detailed, either with or before the issue of the co-ordination drawings. In addition the substitution of Mr Dix for Mr Down made it incumbent on RBH to present AA with any new point. On the other hand I doubt very much if there was any real prejudice to AA of the kind suggested in that their witnesses might not have considered it or in Mr Mackenzie not being given formal prior notice of it. He was plainly capable of dealing with such a point. Both Mr Roberts and Mr Tyler both covered the ceiling drawings in their evidence. Nevertheless on balance I have come to the conclusion that it could and should have been presented formally and against the overall background to this trial which made it all the more important that there should be finality to RBH's case, it should not be allowed. Had this not been a retrial I would probably have allowed it.
260. Subject to that, the evidence was clear from what Mr Robert Edwards said. The practice was that the architect, WGI produced ceiling layout drawings showing the ceiling grid. The consulting services engineer then marked up the position of the grilles and lighting fittings and returned them to the architect. In practice, according to Mr Edwards, AA received negatives and the process was not straightforward but it could not in any event have been done until AA had completed its scheme drawings. In consequence AA issued the layout drawings directly to TW at the same time as sending them back to WGI for approval and issue to TW, as appears from the site meeting minutes of 21 September 1987. Mr Tyler's evidence was that a contractor would prepare its installation drawings using all the various drawings issued to him (with which Mr Hall broadly agreed). Mr Dix however pointed out that a contractor would not expect to track the position of a diffuser from an architect's drawing but should find it on the co-ordination drawing which seems to be right and in accordance with, for example, the Supplementary Annexure. Mr Mackenzie accepted that TW was entitled to expect that the co-ordination drawings and the ceiling layouts would show the same information so in my view it should only have been necessary for TW to look at AA's co-ordination drawing. No doubt as Mr Edwards said TW was entitled also to "the architect's reflected ceiling drawings that would indicate the precise position of ventilation grilles . . . etc". In his witness statement Mr Tyler blamed WGI for the late arrival of the ceiling plans, although in his evidence he accepted that they had been issued late.
261. The drawings then issued by AA were WGI's 1986 ceiling drawings marked up (but not approved by WGI) and given a reference by AA. As I have said Mr Mackenzie accepted that TW was entitled to expect that the co-ordination drawings and the ceiling layouts would show the same information and that the use of a flexible duct connection would permit a tolerance of the order of 50-60 mm in the positioning of the grille. Since the differences in position were up from 200 to 500 mm I accept RBH's submission that AA's co-ordination drawings were no more than indicative of the positions of the grilles and that this is further evidence that, as pleaded in paragraph 54.2 of the RASC, they did not contain sufficient detail.
262. However it was not essential that they should have contained sizes for pipework, ductwork or cables where that was shown on the single service drawings and the sizes could easily be transposed. Mr Dix accepted that. Nor do I find that the drawings demonstrated that the services could be maintained. On the other hand the claim that the drawings did not show final conduit routes to equipment or accessory positions fails. Mr Hyde said that he did not think that AA would design electrical conduit runs as it was not usually undertaken by a consultant and that in these circumstances would be left to the contractor. Mr Dix said that as a flexible item conduit layouts were rarely shown in practice on either co-ordination drawings or installation drawings (but that would not apply to a 15 mm gas line, unless the void was very spacious).
263. It followed from AA's approach to the amount of detail and information that was to be provided on its drawings that they did not accurately show the location of ductwork or other services (taking into account inherent construction tolerances), such that TW could rely upon them to show the allotted position of the services. As the experts agreed, full dimensioning of M&E services on co-ordination drawings was not normal practice, but since AA did not use a superimposed grid or other means of locating with sufficient precision the position and relationship of services. In my judgment, AA did not comply with the requirements of the Supplementary Annexure, in particular clause 3(b), whereby the locations and dimensions of ductwork were not shown and its drawings did not demonstrate that the service routes were practical or workable or that the services could be installed or maintained.
264. So in summary my conclusions by reference to the main allegations in paragraph 54.2 of the RASC (as altered in November 1999) are that in breach of its contract with RBH AA did not take sufficient care in the preparation of its drawings, both mechanical and electrical, with the result that they were not clear enough for TW to use them, with other relevant information, to prepare installation drawings as necessary (and as required by clauses B1:03:08, B1:03:18, and B1:04:15-16 of the Specification) in order to install the works. There was an inordinate number of queries and clashes, occasioned by AA's failure properly to co-ordinate its single service drawings and to issue co-ordinated drawings based on them which were properly dimensioned (e.g. by the use of a 300m grid) to show the precise locations of services where that was needed. Thus the drawings did not show detailed sections at important areas, such as corridor intersections, electrical cupboards or service risers. These deficiencies were not overcome or were increased by a lack of notes, by the lack of a large scale in congested areas; and the absence of (or errors in) draughting conventions.

Hydrotite

265. As part of the savings made at the tender stage it was decided to remove an isocrete screed from the concrete floor slabs. The consequence of this change was not apparently appreciated by anybody. The contract was thus made on the basis that TW was responsible for drying out the floor slabs. The Bills provided at page 1/30:

"C. DRYING THE WORKS

The Contractor shall be responsible for the adequate drying out of the works during the extent of the contract and maintaining it at a suitable temperature and humidity until handed over. The Contractor shall allow for all costs in providing labour, appliances and fuel…

…

E. The drying out of the works shall be the sole responsibility of the Contractor."

and at page B1/21/B:

"The Contractor's attention is particularly drawn to the description in the Bills of Quantities and British Standard Codes of Practice which calls for special methods of curing, laying and maintenance of materials in particular conditions or at certain moisture content or temperature range, and to conditions adopted by Association of Flooring Contractors and similar bodies…

The Contractor must allow an adequate period in his agreed period for the drying out operations described herein."

Provisions such as these are commonly found. They are directed to ensuring that the Works have been properly dried out before practical completion. They were written for the work as originally specified (and temporary works) and not for the work as modified by the savings (although the text is wide). In 1988 and early 1989 there was discussion between PMI, WGI and TW about TW's responsibility for drying out. It concerned matters such as the need to provide heating in order to avoid further delay in completion and was in the context of TW's claim that it had not priced for a second winter.

266. On 8 March 1989 TW wrote to WGI about new problems that it was encountering:

"We enclose a copy of a letter received from the London Flooring Company Limited, on the subject of moisture contained within the power floated suspended concrete slabs.

You will note that their recommendations are for a light scabbling of the floors followed by a damp-proof membrane application and then a levelling screed for the lino to be laid on.

Your comments on this matter are most urgently required as we are informed that the flooring companies will not be prepared to accept responsibility for the lino covering to the floors without this requirement."

The letter from the London Flooring Company read:

"We confirm having carried out a single hygrometer test on level two in conjunction with F Ball & Co Ltd, the latex manufacturers.

The hygrometer was left in position for a total of not less than 72 hours, and a reading of 92% was obtained.

Flooring laid before the base has dried will in most cases fail because of excessive moisture. It is not the moisture in the slab or screed which is important, but the quantity of moisture leaving the slab and generating the vapour pressure. Hence a hygrometer test is recommended to check the suitability of moisture equilibrium before flooring is applied – a maximum 75% RH is required. However referring to our letter dated 23 February 1989 we would reiterate that with slabs as thick as the ones on this contract, a hygrometer test is not always reliable, i.e. it may indicate that the floor is dry enough, when it is not. We shall however be carrying out a further two hygrometer tests simultaneously during this current week.

We have now received the recommendations from the Contract Flooring Association, Long Furlong House, Holt, Norfolk, NR25 7DD, telephone number 0263 740370, they are as follows:-

The CFA abide by the BS8203 (1987) rules and regulations for installing linoleum, and that is the legal document.

The CFA feel that there will be problems with the slab drying out if it is 400mm thick in places, as nobody knows if the moisture will rise that far or if it will stay in the bottom of the slab causing no problems! The safe answer would be to install a surface DPM! If a surface DPM is installed, then the slab surface must be clean, and the surface roughened to form a key to receive the DPM, after which latex must be applied to the DPM as with power floated concrete.

The CFA recommendation is in fact to lay a surface DPM.

We would point out that BS8203 was March 1987. CP203 was in force before this date but it is very similar. Both standards do not mention "power floated or early ground systems".

267. WGI passed on TW's letter to PMI in its letter of 4 April 1989. It said:

"We enclose a copy of a letter received from the contractor regarding the laying of lime on the power floated slabs. The Code of Practice current at the time of tender certainly refers to an RH value of 75% but the document only refers to a d.p.m. being required in slabs in contact with the ground. We believe that any residual moisture in the slabs will be drawn out in the course of time via the underside where the top surface is sealed by lime and the contractor is being ultra-cautious in his approach. However we are now in a situation where the contractor is seeking instructions as to how he should proceed. Under normal circumstances we would respond that the contractor is responsible for drying out the works, but this would delay progress to an unacceptable extent since it is not possible to forecast just how long it would take to reduce the RH to 75%. Similarly we are aware that there are no funds available to provide some form of membrane even if it were though desirable.

We would be pleased to receive your advice as to the approach we should adopt in this matter."

WGI itself replied to TW on 6 April suggesting that dehumidifiers should bring the RH values to acceptable levels.

268. RBH and its advisers were therefore in a quandary and for some time so remained: to hold TW to its contract would delay completion still further (TW was already 43 weeks late); to meet TW's suggestion would require an instruction which would be treated as a variation. Thereafter, as Mr. Hutchings said, "the subject was discussed with PMI on a number of occasions, when we were advised that they were seeking advice from the Department of Health". On 6 April 1989 WGI wrote to TW in order to hold the fort, as Mr Taverner submitted. On 13 April 1989 TW continued to argue its case that it was a design problem and requested a "specific instruction". TW said:

"We are unable to proceed until such times as this instruction is received and in accordance with Clause 25.2.1.1 we hereby notify you that there may be a further delay to the progress of the Works due to the lack of necessary instructions".

WGI replied on 17 April 1989. WGI referred to the items in the BOQ and said that there was "no reason why our Client should be expected to bear additional costs to enable you to achieve standards which were known to you at the time of tender". The letter was copied to NNN and to PMI (site) and was seen by Mr Massey.

269. On 19 April 1989 TW sent WGI (a) a letter from the London Flooring Co, (b) a letter from the Contract Flooring Association and (c) a letter from Colas Building Products. It said:

"We are in receipt of a letter from The London Flooring Co, the lino floor finish specialists, and attached to this document are letters from Contract Flooring Association and Colas Building Products.

The contents of London Flooring Company's letter and Contract Flooring Association's letter is a recommendation for the surface of the suspended power floated floors on this Contract to have damp proof membrane applied prior to the lino flooring being installed. The letter from Colas Building Products gives a specification that they recommend for the application of their damp proof membrane, the cost of the application of this system by London Flooring would appear to be £5.10/m² for the general floor areas, and £1.25/1.m. for the wall and skirting treatment.

We would be obliged if we could receive as a matter of some extreme urgency your comments and instructions on this matter as we are fast approaching the programme date for the installation of this element of the works."

Mr Hutchings accepted that the estimates were only for the direct costs of the work. (Mr Coleman also agreed that it would be so understood). Mr Hutchings said that he passed the figures on to Mr Wragg. TW's letter or the figures in it reached PMI somehow (even if Mr Hutchings' recollection is mistaken) as it would have been normal practice for TW to have sent such a letter to PMI and for the subject to have discussed with PMI. Thus at a meeting on 28 April PMI advised the DHSS that the "estimated additional cost for lino finished areas is £75,000.00". PMI's subsequent advice as to cost was at the same figure or just below. This was not the budget cost of just levels 2 and 3:

"The budget estimate for laying the moisture membrane, of all areas where lino occurs are treated, will be £75,000.00. The next area of test results will indicate whether this can be reduced."

270. Mr Wragg said that he believed that NNN provided the cost advice. Mr Hutchings made a statement to the same effect. It would have been natural to have gone to NNN. Paragraph 3.142 of WGI's Terms of Reference (see the annexe to the judgment) entitled it to do so. Equally the figure could easily have been calculated by WGI or PMI from TW's estimates and the floor areas. I consider the latter to be more likely as there is no evidence that NNN was in fact consulted by WGI. Even if NNN had been approached it is clear that its advice would only have been about the direct cost based on the reasonableness of the estimate for otherwise there would have been some reference to indirect or consequential costs not having been included (e.g. the possible effect on following trades). For NNN to have advised on indirect costs it would have had to have been given some indication by WGI of the nature of the delay or disruption the costs of which were to be estimated. As will appear WGI had nothing like that in mind. Moreover I cannot believe that NNN would have estimated the cost of the change as £75,000 since it had access to the same information as the rest of the team. No quantity surveyor in such circumstances would have assessed the value as direct cost only, without an explicit reservation which would been recorded and would have been recalled. PMI's overall performance does not give me any confidence that it carried out its duties properly and saw that NNN was properly briefed or that the basis of any figure coming from it would be understood. I am therefore sure that the figure was not NNN's but WGI's, or PMI's, or a joint effort. It was certainly not questioned by either.
271. On 25 April 1989 TW again challenged WGI's view, stating that the "present circumstances are totally different than those envisaged at the time of tender" and requiring "a clear and precise specification to be given by the Architect". TW emphasised that, if instructed, it "will certainly require payment by the Client for these extra works, which were not and could not be envisaged at the time of tender". TW stressed the need for "immediate attention" to the matter. Ironically, TW was in fact not as certain as it professed to be, for disclosed minutes of a meeting of 26 April 1989 attended by Mr Frondigoun, Mr Palmer, Mr M.J. Murphy and Mr Agate (amongst others) show that, although it was recorded that the problem of drying out the floors had "to be resolved as soon possible to ensure that there are no delays to the flooring contract, but it also needs to be very clear that the Client will carry the costs of extra works". Mr Murphy also stated that "he was anxious regarding this matter as we had a responsibility for drying out in the Contract."
272. Therefore whilst WGI was seeking PMI's advice as to how to proceed and requesting it to obtain RBH's "authority to issue the appropriate instructions" (presumably to lay a damp-proof membrane). PMI wanted WGI's advice and recommendations. It wrote to WGI on 28 April:

"The report from yourselves this morning that the moisture content of suspended slabs tests undertaken by Stanger for Taylor Woodrow, are showing moisture contents of 90% or more obviously was received with concern.

However, as you had informed us previously, these tests were not being carried out in accordance with BS 8023 recommendations.

In order to come to conclusions of whether we have a problem or not, it would assist we are sure, if Taylor Woodrow carried out tests and samples with yourselves fully involved at every stage. This would enable a detailed report being submitted for the Clients consideration.

Can you please give instructions accordingly, even to witnessing laying samples of lino flooring, with details of adhesives being used etc.

We would like to have available some positive facts during next week with your advice and recommendations."

On the same day Mr. Wragg had a meeting with Mr. Fisher of the DHSS. The minutes recorded

Any Other Business

"4.1 PMI stated that a problem with the power floated suspended concrete slabs had been reported by [TW]. Tests taken by [TW] on the slabs indicated that moisture content were still too high to commence lino laying in accordance with the guidance of BS 8203 (1987). Investigations were still be carried out, but it may be necessary for a moisture membrane to be used if the project was to progress. Estimated additional costs for lino finished areas is £75,000. The Department of Health is to be kept informed of the progress of the investigations."

Although it is not recorded that PMI passed on WGI's views on TW's contractual liability the note assumes that RBH would have to pay. In its Progress Report to RBH of 2 May 1989 PMI said

"The attitude of the joint venture contractor's site staff continues to be a positive one in the attempt to complete the Phase 1 project as early as possible. Detailed programmes for floor levels have been issued enabling the work to be closely monitored. These programmes show, as we have previously reported, a programme completion date of mid-February 1990, 30 weeks later than the contract completion date. Overall, progress in the past month has met the targets set by the programme issued….".

273. On 3 May WGI wrote to PMI:

"We have now received a preliminary report from Taylor Woodrow on the testing carried out by Stangers on the concrete floors. The tests with hygrometers were carried out on each level and readings taken during the period 26^th-29^th April with the following results:

	24.4.89	27.4.89	29.4.89
Level 1	62%	75%	79/80%
Level 2	68%	77%	79%
Level 3	72%	75%	80%
Level 4	70%	72%	75%
Level 5	80%	77%	79%
Level 6	-	62%	73%

In addition further tests were carried out to sample the moisture of the concrete below the surface with the following results:

Level 1	95.1 – 96.6%
Level 2	89.6 – 96.7%
Level 3	90.8 – 95%
Level 4	89.4 – 95.2%
Level 5	93.7 – 94.9%
Level 6	91.2 – 92.9%

We believe that the difference between the two tests indicates that the hygrometers were not left in place long enough to ensure equilibrium between the concrete and the air sample being tested, but the readings do show a tendency to higher RH as time increases. Nevertheless the fact that readings in excess of 75% are being obtained after the minimum period of test specified in BS 8203 leads us to believe that the contractor is correct in his statement that the floors cannot be considered as a satisfactory base for vinyl and lino floors. In addition it should also be noted that carpets to be installed are rubber backed and are designed to be fixed with adhesive.

It is now essential that the contractor is given clear instructions on how to proceed and we are of the opinion that to seek to place responsibility for drying the structure to this extent on the contractor is not reasonable. BS 8203 which has highlighted this problem was not published until after the contract was awarded. In addition all the advice we have been able to obtain indicates that constructions of up to 350mm may take several years to dry out. We are reluctantly forced to the view that it will be necessary to install some form of vapour barrier to the slabs to enable floor laying to proceed since the only alternative is to delay installation which is fraught with danger since, as it is not possible to forecast the length of any delay, it could possibly have the effect of triggering clause 28.1.3.4 of the contract allowing the contractor to determine. Under these circumstances would you please obtain the client's authority to issue the appropriate instructions." [Emphasis supplied].

Although Mr Hutchings did not agree, the reference to clause 28.1.3.4 (see annex to judgment) shows in my view that WGI was worried that an instruction to wait until the slab was dry enough would be treated by TW as an instruction to suspend the works whereby it would or might be entitled to determine its employment under contract.

274. On 10 May 1989 PMI asked WGI to "provide a final report and recommendation for the Client's consideration":

"We acknowledge receipt of your letter dated 3^rd May 1989, regarding the apparent continuing dampness of the suspended floors on all levels when laying of lino would not be in accordance with BS 8203.

We are aware of the serious implications to the progress of the works. However, as the tests were done in isolation albeit by Stangers and in the absence of a report or even method statement on how the tests were carried out, it did seem necessary for further work to be done before you could provide a final report and recommendation for the Client's consideration.

This was discussed and to this end we are pleased to see that further dampness tests have been instigated and daily readings are being taken. We also arranged for the visit of Mr C Stewart, who advises the Department on aspects of building and is familiar with flooring problems. This will take place on Tuesday 16^th May 1989, at 10.30 am, when we would hope to finalise the outcome of all investigations. This timing you thought still enables the 29^th May 1989 date for lino laying on Level 2 to be achieved.

We have informed the Client and Department of the current problems, together with the possible need for a damp proof membrane to resolve the problem and also of the financial implications. We have also warned that in accordance with your letter a similar situation could be expected with the adhesives for rubber backed carpets, but that you would be advising further on this.

Perhaps we could inspect the locations of the hygrometers on the floors together during your visit to site tomorrow."

Since the letter referred to PMI having informed RBH and the DHSS of "the financial implications" (which included the meeting on 28 April), PMI was not in my view thereby relieving WGI of responsibility to provide advice on factors which might affect the actual cost to RBH of the work that it was to propose. The purpose of the letter was to get a firm basis for a decision as to whether or not a dpm was necessary and if so, the consequences in terms of time and money. At that time TW was saying that the lack of an instruction could result in delay. In a letter of 10 May TW said "due to your inability to resolve this problem quickly we now estimate that the delay incurred beyond the current completion date is 40 weeks". In addition on 16 May 1989 there was a meeting at which TW report that "problems with the vinyl flooring could cause a further eight to twelve weeks delay" (item 28.2.1) and PMI report (28.6.1) that the likely delay was six weeks. It is clear therefore that there might be delay and its length was not at all certain. TW was not going to be helpful as it presented the problem as one of design. WGI confirmed that advice about the drying out problem and power floated floors was to be given after the meeting.

275. The result was WGI's letter of 17 May 1989:

"We are advised by the contractor that the readings of the three hygrometers installed by Mr Stewart are as follows:-

Level 2 – 80%

Level 3 – 81%

Level 4 – 75%

It is clear that these readings are tending towards the long term readings of the instruments installed by Harry Stanger and that the floor slabs are not dry enough to install sheet floorings in accordance with BS8203. We need therefore to instruct the contractor on the steps they should take. There are 3 options:-

(a) Instruct the contractor to delay floor installation. Our pervious correspondence indicates the dangers inherent in this course of action.

(b) Instruct the contractor to proceed without regard to the condition of the slabs. We could not recommend this course of action and would have to decline any responsibility should it be selected.

(c) Instruct the contractor to install a moisture resistant membrane at additional cost. We understand that the flooring sub-contractor and the specialist supplier of the membrane and adhesives are prepared to guarantee the installation if this course of action is agreed. However we must draw your attention to paragraph 6 of the Stanger Report dated 17^th May, a copy of which is being handed to you by the contractor. We have discussed this with Stanger who say that any moisture which can migrate to partition locations will do so and it might be that the partitions will draw up any such moisture in the manner of a wick giving the impression of rising damp. There does not appear to be any firm evidence available upon which to form a judgement on the extent of any risk.

As was mentioned at yesterday's site meeting until this matter is resolved the order with Forbo-Nairn cannot be confirmed and further delays may be unavoidable. We also confirm that we share Mr Stewart's view that the use of dehumidifiers would not offer any significant improvement in the situation. Since water in concrete migrates from large to small voids with increasing difficulty as the size of the void decreases the very nature of power floated slabs inhibits this migration to the point where evaporation can take place, and it is not possible to extrapolate the drying time to a point where flooring could be laid without risk.

We would be grateful if you would obtain direction from the client as to the cause [sic] of action to be adopted."

Mr Hutchings accepted that, if a variation was being proposed by a member of the design team, then the proposal had to take account of cost and programme and that the project manager had to be advised of such effects, although he maintained that matters of cost were for PMI to obtain from NNN. Mr Hutchings said also that they were not then in mind since the change was not a variation which WGI was proposing but "was something which had developed between the contractor and the design team and PMI". However he agreed that as the architect, he would need to have in mind the possibility that an instruction might give rise to delay and disruption, and therefore to the need to ascertain loss and expense, and that time would be very much a matter for the architect to take the lead on, together with the project manager. It is obvious that, in the context of the debate at the time, option (c) would give rise to a variation. It could not have been classified in any other way, although WGI could have sanctioned TW to lay hydrotite to extricate it out of its contractual predicament. Clause 13.2 of the JCT conditions states the Architect "may sanction in writing any Variation made by the Contractor otherwise than pursuant to an instruction of the Architect/Supervising Officer." Mr Hutchings was very firm in his evidence that PMI had instructed WGI that TW was not to be held to its contractual responsibilities. I do not accept that evidence as the documents do not support it and option (a) in WGI's letter of 10 May is inconsistent with it. It would not have featured if Mr Hutchings were right. Option (b) would of necessity have been a "calculated risk" as Mr Adams put it.

276. PMI then sent that letter to RBH (together with WGI's earlier letters of 3 and 12 May) on 18 May.

"Following our advice that we were experiencing problems with excess moisture in our power floated floors on Phase 1, which will delay the progress of lino laying on site, we now enclose the Architects letters dated 3^rd May 1989, 12^th May 1989 and 17^th May 1989.

Advice has been sought from many sources, Department of Health, Building Research, Cement & Concrete Association and what is evident from discussions is that little is known on the rate that moisture is given up from concrete slabs. Obviously, with the well constructed slabs the rate is slower. In our own case Level 2 slab is now 21 months old, yet has been in protected conditions with roof and windows completed for many months.

We arranged on Tuesday of this week for the services of Mr Charles Stewart, an independent Architect, who advises the Department on building matters to come to site to discuss the problem and verify with his own instruments the readings being obtained by the Joint Venture Contractor.

The Architect's letter dated 17^th May 1989 confirms that the readings taken by Mr Stewart demonstrate that the slabs are not dry enough to lay lino in accordance with the British Standard 8203 (1987) and consequently the Joint Venture Contractor is unable to appoint a subcontractor until the way ahead is resolved.

The Architect's letter details the options open. The use of the moisture resistant membrane entailing a guarantee of this as a satisfactory method of overcoming the problem is recommended by ourselves as the way forward.

This will bring additional costs and for the lino areas alone it is estimated that a budget of £70,000.00 should be allowed.

With carpeted areas the Joint Venture Contractor has programmed the earliest laying start date in August 1989. We have to investigate whether there are problems with carpet adhesives and moisture in slabs, but in any case a further 3 months may establish further drying to the extent when the problem is no longer with us. To establish this it is agreed with the Architect that moisture readings continue to be taken and monitored.

Mr Fisher of the Department of Health has been kept informed of the problem and the possible costs involved. Obviously, the new British Standard issued in 1987 is bringing to light the inherent problems with power floated suspended slabs and Mr Fisher has been made aware of this.

We obviously need as a matter of urgency your instructions on how to proceed. Work is due to commence on Level 2 on the 29^th May 1989 and a decision should be made this week if delays to progress are to be avoided.

Please let us know if further information is required."

(The letter was not copied to WGI but it was not necessary to do so.)

277. Thus both WGI and PMI recommended that Brompton should authorise WGI to instruct TW to lay a damp-proof membrane. Neither advised that TW was contractually responsible for drying out the works. Mr Hutchings said that such an option had been ruled out, but, curiously, Mr King said that he thought that option (a) in WGI's letter of 17 May was to hold TW to its contractual liability. WGI's letter contained nothing on the financial implications beyond mentioning delay against option (a) and "additional cost" against option (c), even though Mr Hutchings accepted that if an instruction was needed RBH would have to pay for it. Although Mr Plant had discussed the question with Mr King, he did not consider that TW was liable. Had Mr Plant said that he had known that the cost might exceed £70-75,000 he would not have authorised the instruction without first obtaining funding from the DHSS. The only advice as to cost given was by PMI, referring to a budget of £70,000 for lino areas. Although Mr King agreed that instructions of the kind contemplated by WGI might give rise to extensions of time or might entitle TW to recover loss or expense, he emphasised "might" when giving evidence. There was no mention of any such risk in either letter.
278. Faced with the prospect of indefinite further delay to completion and with WGI's belief that TW might in some way determine its employment if it did get the instruction that it required, Mr Plant had thus no obvious alternative and authorised PMI and WGI to issue TW with an instruction. He did not ask for any more information since naturally he thought that he was being given the whole picture. Mr Wragg said in his second witness statement that he had a meeting with Mr. Plant at which

"I told Mr. Plant that it was clear little was known about the rate at which moisture is given up from the slabs (this was the advice of the DHSS recommended consultant) and because of that PMI had to agree to the use of a moisture resistant membrane. I believe I took the letter to John Plant personally. The construction phase was at this time almost ¾ complete and in the circumstances I could not recommend delaying the project indefinitely. I explained to John Plant that I was in favour of spending additional monies to maintain progress on the project; it was the lesser of two evils. John Plant instructed me that WGI should issue a site instruction to JVC to lay a membrane."

Mr Plant agreed that such was the gist of the conversation. Plainly Mr Wragg knew that TW might not be entitled to the instruction but nevertheless considered that it should be issued. It is not therefore open now to PMI (nor of course to WGI) to contend that RBH should be dealt with on the basis that it was an instruction to assist TW and that TW was not entitled to its consequences under the contract. If that had been PMI's view it should have advised RBH that the instruction should have been qualified. WGI's Site Instruction No 6 of 18 May read:

"POWER FLOATED SLABS

Slabs which are shown to have an RH in excess of 75% when tested in accordance with BS8203 shall be treated with Colas Hydrotite in accordance with the manufactures instructions subject to a written guarantee from the flooring sub-contractor underwritten by the manufacturer of the membrane smoothing compound and adhesive.

Tests are to be maintained on levels 4, 5, & 6 to monitor RH values.

This instruction does not extend to level 1 or other areas where a screed has been applied."

Level 1 was excluded by the last sentence as TW laid hydrotite on that level of its volition (and apparently did not subsequently claim that the work should be sanctioned under clause 13.2 of the JCT conditions, although it resurrected a claim in the arbitration and evidently the costs of level 1 was taken into account in the settlement of the arbitration). PMI's later report No 6 set out the position:

"2.0 PROGRESS

2.1 Phase 1

In our last report we indicated that the completion of services in ceiling voids was not meeting the target dates of the Joint Venture Contractor's detailed rescheduled programmes.

It is evident that the amount of work, particularly regarding electrical wiring, has been underestimated. The evident shortage of electricians on site four weeks ago has been rectified and up to 80 no electricians are now on site, with a large proportion of those prepared to work Saturdays and Sundays.

Despite the steps that have been taken the work to the erection of false ceiling grids, which is the most critical item on the programme, is now 1½ weeks in delay related to the rescheduled programme. Completion of services in the ceiling voids is 4 weeks behind the revised target dates.

The services partner of the Joint Venture Contractor, Taymech Ltd, has now placed on site a Divisional Director and a Senior Planning Engineer to oversee the services installation. This is certainly a welcome move with the continuing under-estimation by Taymech Ltd, of the task ahead.

The Architect has made known the concern of all at the inability of the Joint Venture Contractor to achieve programmed target dates and although this report has concerned itself with ceiling void services, erection of false ceilings to allow general floor finishes, equipment installations and decorations to proceed, concern has also been registered that other service installations are not making the expected progress.

An unexpected problem has occurred with the suspended power floated floors and despite being under cover now for nearly 12 months, they have not given up sufficient moisture to allow lino laying to commence. Screeds from Level 2 – Level 6 were omitted at the Bill of Reductions time to make financial savings. The advent of a new British Standard on floor finishes in 1987, has brought to light inherent problems with the drying out of power floated structural slabs.

Advice has been sought from many sources, Building Research, Cement & Concrete Association and Oxford Regional Health Authority. We have also had the benefit of advice from Mr Charles Stewart, an independent Architect, who advises the Department of Health on building matters and particularly on floors.

Mr Stewart came to site on Tuesday, 16 May 1989, to look at our particular circumstances and also to take readings of the moisture content on Levels 2, 3 & 4. These readings were completed on the 19^th May 1989 and showed moisture contents of 82%, 82% & 77%, all greater than the 75% required by the British Standard 8203.

What is evident from our enquiries is that it is not possible to establish how long it will take for the slabs to give up what is a small amount of moisture to achieve a 75% reading.

In order to make progress on the project, advice has been given to the Client that a moisture membrane will have to be used. This advice has been accepted and instructions issued to the Contractor to proceed on this basis. Moisture readings will continue to be taken on the upper floors and if readings of 75% and under are achieved on any floors the use of a membrane will be omitted from these locations." [Emphasis supplied]

279. Mr Plant also agreed that the last paragraph summarised the position as regards RBH. I have emphasised one paragraph in particular which shows that both WGI and PMI had in mind progress in areas that might be affected by the laying of hydrotite. The report also specifically considers the effect of the new work on TW's progress (see the italicised passage). TW first not unreasonably took exception to the terms of SI 6 - see its letter of 19 May 1989:

"We are in receipt of your Site Instruction No 6, the contents of which are noted.

We must, however, notify you that whilst we are quite prepared to carry out the installation of the floor covering using Colas Hydrotite in accordance with their recommendations and instructions, we are not prepared to enter into a situation of Guarantee with regard to this work.

If it is your requirement to obtain a Guarantee with regard to the Hydrotite system you will have to obtain any such Guarantee directly from the flooring Contractor/Manufacturer. As you are aware we, as the Contractors, have our responsibilities clearly set out within the Contract and we cannot enter into any other agreement other than the commitment contained within the Contract for the Works.

We have arranged a meeting with the London Flooring Co Ltd, Colas Ltd, Taylor Woodrow Construction and, hopefully, yourselves for 11.30am on Wednesday 24 May 1989 to discuss the situation and, hopefully, arrive at a final solution to the problem.

Your acknowledgement that these arrangements are to your approval will be appreciated."

Mr Hutchings believed that he had had a meeting with TW and Colas on 16 May at which he was given trade literature about hydrotite. However in his evidence he was not at all clear about the meetings that he had had (which included a meeting with Mr Stewart of the DHSS, strangely after Mr Stewart had had a separate meeting with Mr Wragg). I consider that the meeting which Mr Hutchings had with TW and Colas was confined to the technical aspects of hydrotite, as Mr Hutchings had never heard of it before the meeting. Mr Hutchings could not even recall whether he had the "manufacturers' instructions". Yet although it is common for work to be specified in this way it is rarely (or properly) done by an architect without sight of the instructions. In my view SI 6 therefore referred to the manufacturer's instructions and to the guarantee because they had been handed over to Mr Hutchings on 16 May. I am sure that there was no discussion about the effect of the work on TW's other work. It was assumed that there would be no further delay as that concern was uppermost in Mr Hutchings' mind. Mr Hutchings however accepted that it would have been prudent to have got a method statement before issuing any instruction and that the nature of the work was likely to prevent access not only to where work was being done but other areas from which there would be no escape in the event of fire. The minutes of a site meeting held on 16 May 1989 record that TW was now estimating a delay to completion of 43 weeks.

280. At the meeting on 24 May between WGI, TW, London Flooring and Colas the precise nature of the work emerged for the first time. Colas had visited the site on 23 May. The upshot of that visit and of the meeting were set out in London Flooring's letter of 26 May and the Colas letter of 25 May). The latter read as follows:

"The floor area having been inspected by D Whitcomb and A S Harris on the 23.5.89, we would confirm that providing all surface contaminants, such as plaster, cement droppings and oil spillages are removed, especially congealed material at wall floor angle areas, leaving sub-floor clean and dry prior to applying Hydrotite.

We confirm that Hydrotite can be applied over existing and sheened areas and areas subject to staining from plaster and surface laitance, thereby removing the necessity to abrade sub-floor surface.

In order to obtain maximum penetration of Hydrotite we would recommend the first coat be applied using a 1½"- 2" fairly stiff bristle brush to achieve a coating of about 35m² per unit and carrying the coating up the wall for some 5 – 10 m i.e. above ultimate level of smoothing compound.

The first coat should be allowed to dry overnight to give clear pink film. When dry, the second coat must be applied using either a short mohair roller or brush. Whilst curing, the surface must be kept free of traffic to avoid any damage to the coating.

When dry apply a slurry coat of Laybond Smoothing Compound underlayment as per our recommendations in our Guide to Good Flooring 89/90 page 6.

When dry apply average 3mm level of standard mix Laybond Smoothing Compound. Allow to dry as per our Guide before bonding linoleum using Laybond 987 adhesive.

Having laid linoleum as per manufacturers instructions, we would draw your attention to premature trafficking. We recommend that newly laid floors are subjected to only light foot traffic for 24 hours to allow adhesive to dry out sufficiently as per our Guide, page 6. Prior to fixing coving we would recommend Hydrotite being applied to finish plastered rendering, to same height as pvc coves.

The coving must then be fixed within 4 days of the cured Hydrotite using Laybond Quickstick Plus and applied as per Guide.

London Flooring's letter was:

"Further to our meeting on 24 May 1989, we enclose herewith a copy letter from Colas Building Products dated 25 May 1989.

We concur with their observations in respect of the installation of floor coverings on this contract, but would like to add the following.

Latex is not a levelling screed as such, its primary use is for smoothing an open surface as well as providing a suitable base to receive an adhesive, over the Hydrotite surface membrane.

It would be ideal if the building could be left to dry out, as reported by Harry Stranger's laboratory, but this being impractical, the only recourse is to lay a surface membrane.

Our price for laying two coats of Hydrotite to floors has already been confirmed to you at £5– 45m 2. We note from Colas's specification that the will need, prior to laying latex, a slurry coat of a latex mix. Our price for this will be £0 – 75/m2. Regarding applying the Hydrotite to the plastered walls where PVE skirting is to be installed. This will be carried out to the height of the skirting line, and our price for this will be £1 – 25/1.m.

Our work method will be as follows.

Minimum of 300m2 to be ready and properly cleaned for us to commence.

Then areas to be got ready on a smaller scale once we are on site eg 70m2 at a time.

Operation 1. First coat of Hydrotite on floors and turned up 20mm to walls.

Operation 2. Second coat of Hydrotite ditto.

Operation 3. Slurry coat of latex.

Operation 4. Lay latex to slurry coat.

Operation 5. First coat of Hydrotite to plastered walls, to skirting height.

Operation 6. Second coat of Hydrotite ditto.

Operation 7. Fix PVC skirting within four days of completing operation six.

Operation 8. Lay lino to floors.

Operation 9. Weld joints in lino.

It is vital that no other trades are in any of the areas whilst all of the above operations are being carried out.

We suggest that we work one floor at a time in areas free from anything that may contaminate any of our operations. Needless to say there must be no foot traffic on the floors until 24 hours after the lino has been completed.

May we point out that it is not our responsibility to protect floors during or after our operations."

281. TW sent the letters to WGI on 2 June and submitted its rates for the instruction. It added:

"We would inform you that due to the conditions under which it is recommended this material is laid, there could be programming implications. When this has been assessed by our site management they will communicate with yourselves."

PMI wrote to Mr. Fisher on 2 June 1989 recording what had happened:

"At our last meeting on 28 April 1987 on site, we reported the problem being experienced with moisture still retained in to power floated floor slabs to the extent that line laying would not be able to progress to programme.

The Joint Venture Contractor first registered this problem with the Architect in a letter dated 13 April 1989, when it was established that proposed subcontractors expressed their unwillingness to enter into subcontract unless the moisture content of the slabs complied with British Standard BS8203.

This British Standard specifies the type of tests to be carried and advises that laying of floor finishes dependant on adhesives should not progress on slabs with moisture contents greater than 75%. Preliminary tests taken by both prospective subcontractors and the Joint Venture Contractor indicated that the moisture content was higher than this.

Obviously, the new British Standard BS8203, has made the flooring industry more aware of the potential problems and in particular of failures that have occurred with power floated floors.

In all the investigations with the Cement & Concrete Association and Building Research, it was evident that the unknown factor was how long it would take before the slab would give up sufficient moisture.

The Joint Venture Contractor employed Stangers, to take a series of moisture content tests of the slabs from Level 1 to Level 6.

We ourselves with the Client's agreement, employed Mr Charles Stewart, an independent Architect who advises the Department of Health on building matters and has particular experience on floors, to come to site and take readings.

Letters dated 3^rd, 12^th, and 17^th May 1989, from the Architect are enclosed which provides information on the tests carried out by the Joint Venture Contractor and expresses concern at the need to agree the way forward.

Also enclosed is a report from Mr Charles Stewart, together with a summary of the results obtained from his own readings from instruments provided by himself, which complied in all aspects to the recommendations of BS8203 (1987).

The results confirmed that the slabs still contained too much moisture, despite in some cases being cast over 21 months ago and protected from all weather for well over 12 months.

Without at this stage any possible method of extracting the moisture quickly, it was necessary to recommend to the Client the application of a moisture membrane to the slabs, to allow lino laying to proceed.

This advice has been accepted and the Architect has been requested to instruct the Joint Venture Contractor to proceed. Further moisture content tests will be taken shortly by Mr Charles Stewart, to establish whether drying is taking place to the extent that slabs are suitable to lay on without a membrane.

The budget estimate for laying the moisture membrane, if all areas where lino occurs are treated, will be £75,000.00. The next set of test results will indicate whether this can be reduced.

We will keep you informed of any further outcome and please let us know if further information at this stage is required."

282. On 16 June 1989 TW followed its letter of 2 June with a method statement and a claim:

"Further to your Site Instruction No 6 and our meeting on 24 May 1989 we attach a copy of the Method Statement supplied by the London Flooring Co Ltd for the application of the surface membrane and flooring on power floated slabs. The effects of this variation are:

1. To halve the output of the floor laying Subcontractor.

2. Require the complete isolation of floor areas causing disruption to the regular progress of the works.

We hereby give you notice under Clause 25.2.1.1 of the Contract that compliance with your Site Instruction No 6 dated 18 May 1989 is likely to cause a delay to the progress of the works. Compliance with this Instruction is a relevant event under Clause 25.4.5.1. We estimate that the likely delay to the completion of the works beyond the current completion date will be 33 weeks."

283. The method statement was essentially that previously set out by London Flooring. Later TW said:

"In an attempt to improve the situation, we have changed the programme sequence by making the vinyl flooring the critical path activity. This is seriously disrupting other trades due to the isolation of floor areas and the increased duration caused by the addition of the hydrotite membrane."

Mr Hutchings said that as a result of the discussions in May he had anticipated that TW would have to resequence the works and would move to a new critical path in order to avoid delay, although the grounds for this assertion are not clear to me. If true, then plainly he ought to have considered what it might entail and whether it would attain its objective and what the consequences might to RBH if it did not. I do not consider that Mr Hutchings ever thought about the effect of SI 6 as there is no indication of it.

284. TW later wrote to PMI about another matter. In the letter of 4 August 1989 TW made the situation clear about the effect of SI 6:

"Thank you for your letter of 7^th July regarding the M & E claim. You have now confirmed by telephone that, despite previous assurances, no additional advice can now be made available to assist in the evaluation of this claim.

We must re-iterate that the extremely technical nature of this claim requires specialist expertise to assess it fully, and this level of speciality can only be provided by an appropriate specialist consultant. Without such expertise we will have to rely solely on the advice of Austin Associates who are of course the Mechanical Engineers involved in the project.

The programme position is generally as reported at the last meeting. The snagging and inspection of high level services is gaining momentum and we are optimistic that there will be a visible improvement in the completion of services over the next few weeks.

In an attempt to improve the situation we have changed the programme sequence by making the vinyl flooring the critical path activity. This is seriously disrupting other trades, due to the isolation of floor areas and the increased duration caused by the addition of the Hydrotite damp proof membrane."

285. On 5 September 1989 TW made a formal claim:

"Further to our letter of the 19^th June 1989 informing you under Clause 25 of a likely delay due to your Site Instruction No 6, we would now inform you that due to this instruction that we have incurred and are likely to incur direct loss and expense in the execution of this work due to disruption of the regular progress of the works by reason of the sequence of works as set out in London Flooring Co Ltd's Method Statement.

We therefore make application for reimbursement of this loss and expense under Clause 26.1 of the Contract Conditions, the relevant matter being Clause 26.2.7.

We would appreciate it if you would instruct the Quantity Surveyors to ascertain the amount of this loss and expense and include a recommendation for same in interim certificate."

Thereafter, although consideration was given to the possibility of avoiding the application of hydrotite to levels 4, 5 and 6, it was decided that it was too risky not to do so.

286. TW wrote again on 11 October:

"Further to our recent notification regarding the delays being incurred by the inclusion of the hydrotite damp-proof membrane, we are pleased to enclose, in accordance with Clause 25.2.2.2 our Programme indicating the effect of the hydrotite membrane and the completion of the linoleum flooring. As you will see this indicates completion by Week 150, which is 17 weeks behind the original completion on the revised programme of Week 133.

We look forward to receiving your extension of time to cover this, but if you require any further particulars please specify their nature within the next 7 days, failing which we will assume that the information we have given is sufficient."

At Design Team meeting was held on 12 October 1989 at which TW's claims for extensions of time were discussed. The minutes, which were prepared by Mr Hutchings included the following relating to Hydrotite:

"2.0 Claims related to finishes

2.1 WGI reported that TWC had submitted a claim for delay in respect of the application of the Hydrotite system of damp proofing concrete floors. This had been amplified by a programme which showed that if applied strictly to the target completion programme the additional works would add 14 weeks to the floor laying activity.

2.2 It was accepted by all present that the instruction for this additional work had been unavoidable and that the effect of this was to disrupt the regular progress of the work.

2.3 WGI assessed the delay at 5 weeks."

WGI formally reported its views to PMI on 12 October 1989:

"With reference to the discussions at the Design Team Meeting held on 12 October, we confirm that we have examined the submission made by the contractor for extension of time in respect of the damp proof membrane being applied to the floor slabs. The contractor claims that in complying with this instruction he has been involved in additional operations which have had a delaying and disruptive effect on the regular progress of the works, to the extent of 14 weeks.

The contractor has reorganised his work patterns, albeit with disruptive effect upon other trades to reduce this period wherever possible. We are of the opinion that:-

a) The cause of the delay is a Relevant Event, i.e. clause 25.4.5.1.

b) The effect of this additional work would delay the completion of the works beyond the Completion Date.

c) A period of 5 weeks would be a fair and reasonable extension of time in this respect.

In accordance with our previous agreements we shall delay the issue of our Notice of Revision to the Completion Date in order that you may advise the client and the Department. The revised Completion Date will be 12 November 1989."

On the same day WGI told TW that an extension of time for 4 weeks for the vaults and variations to reinforcement would have been granted but for the extensions already granted – see also later.

287. On 23 October 1989 WGI having reassessed TW's claim in respect of the late issue of the M&E co-ordination drawings re-affirmed its view that 5 weeks was attributable to the need to lay Hydrotite. On 10 November NNN assessed the loss and expense due to TW as £214,000.
288. On 4 November 1999 His Honour Judge Hicks QC decided a preliminary issue:

"Immediately prior to the issue of the architect's site instruction 6 were Taylor Woodrow contractually responsible for the drying out of the concrete floor slabs at such times and for such periods as might be necessary to facilitate the progress and completion of the works."

RBH, PMI, and CNM argued that it should answered: Yes. WGI took "no position". Judge Hicks therefore decided the issue on written submissions from RBH, PMI and CNM (but not WGI) and without oral argument. Not surprisingly in such circumstances, he concluded that TW was "contractually responsible for the drying out of the concrete floor slabs at such time and at such periods as might be necessary to facilitate the progress and completion of the Works". As I have already set out that conclusion was not held by either PMI or WGI in 1989. SI 6 was then treated as a variation under clause 13 of the JCT conditions.

289. RBH's case against WGI was in part that WGI should have advised that TW was contractually responsible for drying out and its advice was deficient as RBH was not limited to the options presented to it. RBH also submitted that, in relation to a change such as that made by SI 6. WGI should have advised RBH as to its potential cost and programme implications so as to enable an informed decision to be made. RBH relied on clause 7.10 of the Project Procedures Document. That states:

"When a member of the Design Team considers that a variation is required in any category except Category 2 then he is responsible for notifying the Project Manager, and for requesting other members of the Design Team to investigate and assess the design and programme implications of the change, providing sufficient information to the Quantity Surveyor to estimate a budget cost."

RBH submitted that since WGI was the relevant member of the design team it was responsible for obtaining the assessments of other members of the design team and in providing sufficient information to NNN for NNN to estimate a budget cost. RBH's case was that WGI had failed to do so. On 10 May 1989 it had been asked to provide "a final report and recommendation" for RBH to consider. If WGI had done so with reasonable skill and care it would then have told RBH that hydrotite would delay completion as it would cost more than £75,000.

290. WGI said that it did not have an express obligation to advise on the effect of a variation. It did accept however that in normal circumstances an architect acting under a JCT standard form (but without an informed and knowledgeable project manager acting on behalf of the client), would be expected to advise on whether a prospective variation would or would be likely incur additional cost because of its delaying or disruptive effect. If the variation was essential as opposed to being desirable (where the client had a real choice about it) then an architect's duty in those circumstances would be all the stronger.
291. In view of that acceptance by WGI it is strictly not necessary to consider the effect of paras 7.10 and 7.11 of the Project Procedures Document. However since WGI regarded it as a controlling document, its provisions define (or assist in defining) the ambit of the duties owed by WGI to RBH under its retainer. WGI's concession was however qualified since it considered that the presence of PMI diluted or extinguished its obligation. I do not consider that the presence of a project manager affects the position. The architect may need the project manager to secure the assistance of others in the project team to enable the architect to provide the client with comprehensive advice. The project manager is however effectively the client (albeit a highly informed client, as I considered earlier in this judgment) and the architect has to provide the same full advice. The knowledge of the client or the client's representative, such as a project manager, will only affect the extent to which advice needs to be spelled out but its essential elements must always clearly be given even though it may be thought to be pointing out the obvious to the recipient. Thus Mr Hutchings rightly agreed that he would have so advised PMI if he had thought that SI 6 would cause delay and disruption.
292. In any event WGI was specifically asked to provide advice and recommendations on 28 April and again on 10 May 1989 when it was to "provide a final report and recommendation for the client's consideration". WGI had itself considered that it needed RBH's instructions (see its letter of 8 May). In my judgment, whatever WGI's ordinary obligations might have been, it became incumbent to frame its advice so that the client would have no doubt and to cover all aspects, including programming and possible claims for loss or expense, even though that might not have been necessary had the advice been required only by PMI itself. In addition I do not consider WGI's position is materially affected either by TW's failure to produce a proper critical path programme or by PMI's responsibility to maintain a master programme. The absence of a proper programme was not used as a reason for by this time everybody had got used to it. WGI had access to the work done by Mr Woolven and could have used PMI's programme. Indeed Mr Adams made the telling point in his report, which is as valid as regards WGI as it is as regards PMI, that the failure of TW to provide a critical path programme was all the more reason for PMI to make its own analysis and to advise RBH and WGI whether an event was likely to have an impact on completion of the works as a whole, and, if so, what that impact would be. TW had by then no float left to accommodate the proposed work. Of equal consequence is whether SI 6 would have affected work on the critical path. As I have found, Mr Hutchings did not think about it. Since he also accepted that there were two paths, one for the M&E and the other for the building work which at some point would come together, he ought in my judgment to have considered what might be the effect of hydrotite on the installation of M&E services, e.g. the need to close certain areas so that hydrotite could be laid which would prevent access to the M&E services.
293. In my judgment WGI did not clearly advise RBH that it had the option of holding TW to its contractual obligations. Option (a) in WGI's letter of 17 May is based on that premise but the advice was clouded by fears that TW might nevertheless try to convert the situation into one in which it could threaten to determine its employment. (Obviously WGI did not know of TW's qualms.) Option (b) would have been "a calculated risk" as Mr Adams said. In my judgment a competent architect should have realised that TW's position was weak. An architect in the position of WGI should have told TW firmly that in order to comply with its obligations under the contract, TW had three choices:

(1) theoretically, to dry out the slabs, but as that was impracticable (which it was both physically and commercially),

(2) to wait until the slabs had dried out naturally and to suffer any liability for liquidated damages that would ensue, or

(3) to ask WGI to sanction the laying of a hydrotite as a variation required to extricate TW from its own difficulty (which would thus not be eligible for a valuation or other compensation under clauses 13 or 26 of the JCT conditions).

At first sight it is odd that a firm with the experience of WGI did not present RBH with such orthodox advice. There are two probable reasons: either Mr Hutchings was not sufficiently experienced or he appreciated that to present TW with such avenues would probably lead to an investigation as to why RBH was not told of the implications of the decision to omit the isocrete screed. Given the belligerent stance which TW was by then adopting such an investigation would more than likely have resulted. Mr Hutchings was certainly not inexperienced in contractual matters.

294. Instead the only viable option presented by WGI was "(c) Instruct the contractor to install a moisture resistant membrane at additional cost". That advice was incomplete and, as such, misleading. WGI had not considered whether the proposed instruction would result in liability for an amount greater than £70,000. Yet Mr Hutchings accepted that, had he thought about it, the instruction would be treated by TW as a variation and as a claim for delay. It is plain that the only figures available were for the direct cost of the work. Mr Hutchings had never heard of hydrotite. He was given technical literature (the manufacturer's instructions) on 16 May. SI 6 specifically referred to the manufacturer's instructions and called for a guarantee. Mr Hutchings had therefore the opportunity of investigating hydrotite and, to some extent, did so. PMI had suggested to WGI on 28 April that some sample areas should be laid so that WGI would have a better idea of the material and any consequences of using it. It is clear to me that, at the least, laying hydrotite would or might prevent other work being carried out in rooms or other areas by following or other trades or operations, such as those engaged in the suspended ceilings, until it had dried or was otherwise in a condition to permit the continuation of such work. That indeed was one of the worries of WGI which it had itself raised earlier in the year in the context of TW's general contractual obligations - see WGI's letter to PMI of 2 February. Yet WGI did not investigate whether laying hydrotite would have any consequential effects. Mr Hutchings said that he thought the risk of a claim for extension of time or for loss and expense was "very minimal". I do not see how that view could have been arrived at without first examining the impact of laying hydrotite. Mr Hutchings did not do so. Mr Adams made it clear that some effect could not be ruled out.
295. It was certainly part of WGI's obligations to consider the possibility of such effects. Before proper advice could be given by WGI to RBH it might well have been necessary to consult others, e.g. PMI on the effects on TW's plans and programmes, and NNN on financial matters, and to obtain as much information as possible from TW about its expectations. Indeed in many such cases it is and was in my view not unusual (even under the JCT conditions prior to 1990 and the introduction of clause 13A) to try to agree all or part of the indirect costs or the probable elements before an instruction requiring a variation is given, although the necessary co-operation from the contractor may not be forthcoming. Mr Adams confirmed this practice from his own experience and said that he would have expected PMI to have collated the information. Mr Coleman however said that it was not the practice on hospital projects at that time. That may be so. Since project management is of universal application across the construction industry I do not consider that the fact that it was not known to Mr Coleman leads to the conclusion that PMI should not have thought and done something about it. It requires no special knowledge or talent as it is a fairly obvious practical approach. I therefore prefer Mr Adams' view. WGI would still be expected to identify what needed to be costed. Thus Mr Adams also said

"I think there should be dialogue between all of the parties such that when a recommendation is put to the client the client knows that it has been discussed with the contractor and price has been agreed and method statement has been agreed and we can move forward on a sensible instruction."

He said that the architect should lead that discussion and that the project manager would have served his client's best interest either by having that discussion with the contractor prior to the instruction being issued as his negotiating position would be substantially better than trying to have that discussion subsequent to the instruction being issued or by finding out from the architect whether he had exercised that judgment and if so the basis upon which he arrived at his conclusion. TW should have been required to produce a method statement which was comprehensive as there would be a change to its previously established methods of working which would have far-reaching effects, as Mr Adams said, adding, in a reply to Mr Williamson, that he had specific experience prior to 1989 of contractors being asked for such proposals (which accords with my own understanding). In my judgment WGI did not take care to see that it had the full picture. Thus its advice to RBH was not as it could and should have been, had that care been taken. The fact that the information came forward shortly after SI 6 was issued shows in my judgment that it would have been available had WGI pursued RBH's interests with reasonable diligence. I note that in a joint statement the architects commissioned by the parties to provide expert opinions said:

"3.12 We agreed that WGI, knowing that PMI would report the situation to the Board requesting instructions how to proceed, should have reminded PMI of the further option, that TW should be held to their contractual responsibility and instructed to resolve the problem at their own cost.

….

"3.16 We agreed that WGI should have advised PMI that by issuing an architect's instruction to TW to lay Hydrotite there would, in addition to the direct additional costs, be the possibility of claims for delay and disruption and an Extensions of Time from TW".

Some reliance was placed (by PMI) on Mr Adams' apparent agreement that there was no practical alternative to issuing the instruction. However Mr Adams was careful to make it clear that his view was predicated on the assumption of due and thorough consideration and RBH being aware of the implications accepting them.

296. In my judgment therefore WGI did not comply with its retainer with RBH when it was asked to provide a final report and recommendation in that, had it then thought ahead as a prudent architect would have done, it would have realised that its preferred solution might cause delay or disruption (or both) and thus render RBH liable to TW under either clauses 13 or clause 26 (or both) for more than the estimated direct costs of £75,000. Whilst WGI was not required itself to quantify the cost as it was entitled to rely on NNN it could not do so without first deciding on the effect under the contract of the proposed solution. That it was well aware of the provisions of the JCT form is manifest from its excursion into clause 28. It failed to obtain the correct information so its advice to RBH was therefore misleading and not given with due care.
297. RBH relied on clause 11(k) of PMI's retainer. That required PMI to

"Examine and advise on all variation orders proposed by the Architect and advise on the effect on programme and cost. Recommend implementation either at the time, at a defined time or on completion of the project and agree action with the General Manager."

PMI accepted that this obligation required PMI to consider whether there might be such an effect and, if so, to collate the relevant information for the client. Equally, in my view, the obligation to "recommend implementation" follows the general obligation to advise on all variation orders so PMI was obliged to tell RBH if it thought that a proposal from the Architect should not be implemented, either at all or until further information was available. PMI maintained that its obligations had to be determined in a manner consistent with the related obligations of WGI and NNN. Only WGI could issue instructions to TW and only NNN could value them. Thus PMI too relied on clause 7.10 of the Project Procedures Document (quoted above) which provides:

"7.10 When a member of the Design Team considers that a variation is required in any category except Category 2 then he is responsible for notifying the Project Manager, and for requesting other members of the Design Team to investigate and assess the design and programme implications of the change, providing sufficient information to the Quantity Surveyor to estimate a budget cost."

PMI submitted that this obligation was the key to the approval procedure set out at Clauses 7.11 to 7.13 of the Project Procedures Document. They read:

"Approval Procedure

7.11 When evaluating the effects of a variation in any category, each member of the Design Team will be required to formally confirm his assessment in writing, accompanied by any necessary drawings, sketches or other documentation. The Project Manager is responsible for ensuring that this back-up exists and that all assessments have been made on a consistent and reasonably accurate basis. Where he judges it appropriate the Project Manager will endeavour to obtain the Contractor's assessment of the effect of the proposed change on costs and programmes.

7.12 On receipt of the Design Team assessments and, where appropriate, the Contractor's assessment, the Project Manager will prepare a Change Order Form set for consideration by the Client. The Project Manager is responsible for ensuring that the Change Order Form accurately reflects the assessments provided and will endorse the form to indicate this.

7.13 The Change Order Form will contain the following information:

Serial number

A description of the change

Variation category

Bill references

Drawing references

Net cost effective on the Approved Sum by Building and M&E, including direct and indirect costs

Effect on programme

7.14 A Change Order Form set authorised within the delegation limits defined in 7.4 will be separated and distributed to the Client and the Design Team by the Project Manager."

298. PMI submitted that WGI had to see that in proposing any variation it would comply with the requirements of Clauses 7.10 to 7.13. That is correct as a matter of practice, as I have already observed, but PMI was not in my view thereby relieved of its obligation to RBH to take care that WGI did so. In my judgment RBH was right in its submissions that, whilst PMI should have sought the views of relevant members of the design team, including WGI, it should also have informed itself. Mr Coleman agreed with that approach. RBH appointed PMI to be the principal guardian of its interests – see clauses 3.1, 4.1 and 4.2 of PMI's contract with RBH. The Project Procedures Document required PMI to monitor the progress of the works (clause 3.6) and to review TW's monthly progress reports and thus to "assess the overall progress of the works on a monthly basis, advising the Client of the contract implications of progress to date and expected future performance" (clause 5.4). Mr Coleman agreed that PMI had to consider what it had been told by others since it had to give RBH the information that it needed to make an informed choice about whether to authorise the variation. That is of course obvious from the description of PMI's services. However he thought that WGI was solely responsible for advising on the effect on programme. I do not accept that reservation. The provisions of the Project Procedures document and of PMI's retainer to which I have referred and which are annexed to this judgment make it clear PMI had an independent responsibility to advise RBH on progress and programming. Indeed PMI had Mr Woolven on its staff for that specific purpose. At the least PMI had to see that WGI provided advice on programming matters for otherwise it could not assess it.
299. RBH made a number of criticisms of PMI's performance. I shall adopt PMI's helpful summary of them. First, should PMI have told RBH that TW was not entitled to an instruction, since it was contractually responsible for drying out? RBH submitted that PMI ought so to have advised RBH. In my view there is no real answer to this criticism. Mr Williamson accepted that it would have been prudent for PMI to have told RBH in writing of the position since this was not pointed out to RBH (except indirectly via WGI's letter to TW of 17 April), but he submitted that that PMI was not obliged so to do.
300. Mr Williamson submitted, first, that RBH already knew that TW was obliged to dry out the works. I agree that Mr King was aware of this basic obligation. Mr King's attention was drawn to documentary references prior to the time when the need for hydrotite became apparent. I do not consider that he was or should have been aware that such a routine contractual provision would be read as making TW liable to dry out the slab or to overcome in some other way the effect of the design change to omit the isocrete screed. PMI should have made this clear to RBH, since for obvious reasons WGI did not make it explicit. As PMI did not do so it cannot now avoid the consequences of an unqualified instruction such as contending that, since TW was contractually responsible for drying out, it should not have received any extension of time or loss and expense (see paragraph 71 of PMI's defence). In addition, in the circumstances RBH could not have expected that argument to have succeeded in the arbitration as its position was undermined, if not fatally, then substantially, by the actions it took on the advice of PMI and WGI. I certainly would not have put the chances of RBH getting the same decision as that given by Judge Hicks as greater than 50:50, since TW would undoubtedly have a very good case that the obligations to dry out the works were not intended to overcome a deficiency in the design.
301. Secondly, Mr Williamson submitted that such advice was irrelevant since WGI had said that it was not reasonable to require TW to dry out the works. However, that advice was given in relation to an argument about the applicable British Standard. RBH was entitled to know that TW had a liability to surmount the consequences of the design change and how that liability came about (with the arguments for and against) before it could decide whether it would be reasonable not to hold TW to it. PMI was best placed to assist RBH to assess WGI's views, which included the strange and distracting opinion that there was a real risk that TW could validly determine its employment under clause 28.1.3.4 of the JCT conditions. This was a disturbing view but in my judgment no reasonably competent professional person engaged in the construction industry and familiar with the JCT conditions and the circumstances should have held it. PMI rightly said that it was entitled to rely on each member of the professional team having sufficient knowledge of those principles of law relevant to its discipline in order to protect RBH from damage and loss. Thus WGI, while not being expected to have a minute and accurate knowledge of the law, had to be taken to know the general principles of law relating to their practice. Mr Williamson cited paragraph 13-47 of Keating, 7th ed. which says:

"An architect's duties are comparable, in some aspects, to those of ecclesiastical surveyors, of whom it has been said that, they "could not be expected to supply minute and accurate knowledge of the law; but we think under the circumstances they might properly be required to know the general rules applicable to the valuation of ecclesiastical property.""

The analogy is not perhaps precise but the point is correct. However in this context knowledge of the law has two elements. An architect must have an understanding of the fundamental principles of law relevant to construction and an ability to apply those principles in the management and administration of projects and contracts. However contractual questions do not necessarily require a knowledge of the general law but simply a good understanding of standard forms. That is something which is also to be expected of project managers. In this case it is clear that WGI had or purported to have a good knowledge of the principles of law relevant to construction contracts: in a letter of 3 August 1989 it referred to the judgment of Vaughan Williams LJ in Wells v Army & Navy Co-operative Society as relevant. That letter was addressed to PMI and in the ensuing correspondence (to which I shall come) the provisions of the JCT conditions were discussed in some detail. PMI evidently understood the points being made. In my judgment WGI's advice and attitude on TW's supposed right to determine its employment was quite untenable and not thought through at all. It was in my view so obviously unreasonable and apparently wrong that PMI ought to have questioned it either before or at the time that WGI's views were transmitted to RBH. (However the case against PMI does not turn on this point.) There were no technical issues upon which PMI might legitimately have deferred to WGI. A project manager is appointed to evaluate for the benefit of its client the opinions and advice of the other members of the project team. PMI did not do so and so failed to exercise the skill and care required by clause 4.1 of its retainer.

302. Secondly, should PMI should have obtained more information from WGI about the consequences of using hydrotite before advising RBH? It was accepted that PMI did not specifically ask WGI for advice on programme and cost. However PMI did make two clear requests to WGI for its advice and recommendations (on 28 April) and for "a final report and recommendation for the client's consideration" (on 10 May) when WGI was also requested to furnish "the financial implications". These letters plainly called on WGI to consider the effect on progress and programme of any proposed course of action. Mr Hutchings was aware that the reference to cost in the correspondence was to direct cost only. In my judgment PMI was therefore entitled to expect that WGI would deal with anything that affected cost or programming. (See also the agreed statement of the expert architects.)
303. Since PMI expected this information to be provided it ought, in my judgment, to have found out from WGI why it had not been given. Whoever provided the figures, it was clear to PMI that the estimates were based on direct cost. When cross-examined by Mr Williamson, Mr Adams agreed that much of the method statement produced by TW was a statement of the obvious and that it did not say anything which an experienced project manager or architect would not have known, e.g. that work on or above the suspended ceilings would be held up whilst the hydrotite was laid. What was missing was, as Mr Adams said, TW's assessment of the effect of London Flooring's legitimate stipulation that it should have a clear run. Thus, just as WGI is to be criticised for failing to go further, so too is PMI. I do not consider that PMI was right to have gone ahead on the basis that WGI had considered the position fully and had no concerns. The works were running late with no certainty that the date or dates for completion forecast by TW would be achieved. Mr Wragg in his statement said that "the reality was that further significant delay was inconceivable, regardless of blame". In my judgment a prudent project manager would have double-checked with WGI as to why RBH could safely rely on a figure of £70 – 75,000 as the overall cost to it of sanctioning hydrotite to extricate TW from the difficulty that it supposedly had under the contract. Mr Adams said, when asked whether PMI was entitled to rely on WGI and to leave to WGI:

"My experience, and that of many of my contemporaries, is that the project manager is expected to ask more questions, add more value, and I would have expected the project manager to say to the architect: should you not be obtaining a method statement from the contractor as to how he is going to incorporate these works and at what cost?"

That evidence, coupled with Mr Adams' other answers (such as those already quoted in my consideration of the position of WGI), helpfully show what a project manager should do, although as I have said earlier, PMI's conduct is to be judged by ordinary common sense as there was no established practice to which PMI could have had recourse. (Nor is there likely to be even now for such mundane circumstances.) In my view it was clear to a project manager that there was at least a possibility of disruption (as well as delay - as the meeting on 16 May shows). Mr Coleman agreed that this was so. He said: "You cannot predict the way contractors react." In addition, I have accepted Mr Adams' observation that TW's failure to produce a critical path programme made it all the more important for PMI to make its own analysis and to advise the RBH (and WGI) whether what WGI was proposing was likely to affect progress or completion of the works, and what that effect might be. I have also recorded Mr Adams' evidence (which I fully accept) that it was common for contractors to be required to produce a comprehensive method statement where there would be far-reaching effects.

304. I therefore consider that, before advising RBH that TW could lay hydrotite, a prudent project manager in the position of PMI would have complied with clause 4.1 of the retainer by obtaining more information from WGI. In my judgment if WGI had been required to rethink its advice it would have obtained the information that in fact emerged very soon after SI 6 was issued, as all the information was accessible around 17 May 1989 had it been sought.
305. Thirdly, should PMI have bypassed WGI and gone direct to TW? Clause 7.11 of the Project Procedures Document only required PMI to speak to the contractor "…where he judges it appropriate". I do not consider that PMI ought to have done so. WGI was primarily responsible for obtaining all the necessary information from TW and NNN. If WGI had failed or refused to do so, and if PMI knew that it had not done enough, it might then be appropriate to get in touch with TW. I do not consider that PMI can be criticised for not taking this step. In any event PMI was given a discretion and I do not consider that it failed to exercise reasonable care towards RBH in not exercising it. Obviously TW would have been able to provide the information.
306. Fourthly, ought PMI to have warned RBH that there might be significant delay to completion or disruption were the instruction to permit hydrotite issued? This criticism is not justified standing alone. The real question is whether, had PMI taken the steps that, in my view, it ought to have taken, it would then have advised RBH of any delay or disruption. I do not consider it realistic to use the extensive analysis conducted by Mr Gibson as this was carried out retrospectively, using material that would not have been available to either WGI or PMI, even if TW had been approached and had been willing to help. Mr Adams when cross-examined said, in my judgment rightly, that whilst WGI or PMI might possibly have come to conclusion that there would be no critical delay they should have considered it. Since on the evidence neither PMI nor WGI ever considered delay or disruption it is impossible to conclude that RBH would (or even might) not have been advised that there was no significant risk of either. In my judgment, at that stage, bearing in mind that TW was late and would be seeking further excuses, a responsible project manager would have advised RBH that there was at least a significant risk that TW would claim an extension of time and that it would in principle be entitled to it.
307. During the case two further possible criticisms emerged (that PMI should have seen that SI 6 was issued on a "without prejudice" basis and that it was issued on a no cost or fixed price basis) but neither formed part of RBH's original case or was pleaded so I do not examine them.
308. In my judgment therefore PMI failed to discharge its obligations to RBH under its contract. It ought to have advised RBH that TW was liable but that an instruction to lay hydrotite might lead to TW being delayed and disrupted so that the cost to RBH might be greater than the estimate of direct costs of around £75,000. It ought to have required WGI to consider and advise on the effect of an instruction in terms of delay and disruption.
309. RBH pleaded in paragraph 69 of the RASC:

"69.1 In order to apply Hydrotite, Taylor Woodrow's sub-contractors had to have sole access to the area where it was to be laid, so that temporary partitions had to be erected and other trades directed to work elsewhere.

69.2 This resulted in both delay and disruption to Taylor Woodrow.

As a result

69.3 .1 Taylor Woodrow submitted claims under the main contract on the 17^th December 1990, the 18^th December 1990, the 11^th April 1991 and/or the 31^st May 1991 set out in paragraph 29 above.

….

69. 3 .2 WGI granted Taylor Woodrow extensions of time on the 19^th October 1999 and the 24^th November 1989 as set out in paragraph 28 above.

[69.3 .3 The Board paid Taylor Woodrow £858,123 as set out in paragraph 30 above.

69.3. .4 Taylor Woodrow advanced claims 10, 11, 12, 13, 18, 20, 22, 23, 24, 29, 31 and/or 34 in the arbitration set out in paragraph 32 above]".

The parts in square brackets were not selected for decision at this stage. The case against WGI and PMI continued in paragraph 74:

"74.2 Had PMI and/or WGI not been in breach of contract and/or negligent as set out in paragraphs 71.4 to 71.11 inclusive above and 72.5 and 72.12 inclusive above respectively, then:

74.2 .1 the Board would not have agreed to the giving of the instruction to lay Hydrotite; and/or

74.2 .2 the extensions of time and payments to Taylor Woodrow in respect of the instruction to lay Hydrotite referred to in paragraphs 69.3.2 and 69.3.3 above would not have been granted or made; and/or

[74.3 .3 in the arbitration Taylor Woodrow would not have advanced the claims in respect of the instruction to lay Hydrotite set out in paragraph 69.3.4 and/or those claims would have stood significantly less chance of success; and/or

74.4 .4 in the arbitration the Board and/or the Plaintiff would not have had to make the claims set out in paragraph 70.2 above and/or those claims would have stood a significantly greater chance of success]".

Paragraphs 74.2.1 and 74.2.2 have been selected for decision (although not so as to bring back paragraph 69.3.3 which was not selected). Thus PMI and WGI saw RBH's case as requiring it to establish that but for the breach or breaches, RBH would not have agreed to the issue of SI 6; that SI 6 caused delay and disruption to TW; and that, as a result TW was granted extensions of time.

310. As regards the first consequence, I have no doubt that if RBH had been properly advised by WGI or PMI it would not have agreed to SI 6 being issued. The evidence is clear that RBH regarded £75,000 as a relatively small additional price to pay to avoid the seemingly indefinite delay that would or might otherwise ensue and that the payment of liquidated damages at the rate of £47,000 per week would not be real compensation for a project that was already way behind programme. Mr Plant's evidence was clear and firm on certain key points. He had never been informed that TW was liable under the contract to dry out the building and, albeit in re-examination, that he would not have authorised the issue of the instruction to lay hydrotite, if he had known that it would or might expose RBH a claim by TW. It is supported by the close involvement of the DHSS which had to be consulted before any additional expenditure was incurred. It was put fully in the picture by the letter of 2 June and Mr Plant also made it clear that such additional expenditure could not be authorised without the prior approval of the Department.
311. Had the proper advice been given I have also no doubt that there would then have been an investigation as to the other options. In my view it is almost certain, and undoubtedly probable, that it would then have been plain, (as later confirmed by the decision of Judge Hicks) that TW was in a contractual predicament and was not entitled to any instruction other than to assist it by sanctioning the laying of hydrotite at no cost to RBH (see Hudson, 11^th edition, paras. 4.179-4.180 and 7.025-7.027, cited by Mr Edwards-Stuart) (and that there was no risk of determination). TW was uncertain about its position as is clear from the note of 26 April 1989. It had after all dealt with level 1 without an instruction. My assessment of the situation is that TW thought itself lucky that PMI and WGI were persuaded that RBH's options were so limited. Although during the trial much was made of TW's stance I consider that in these circumstances it was probable that its bluff (which had served it well so far) would then have been called and it would have agreed to do the work, perhaps "under protest", but effectively without an instruction requiring a variation. TW was very late and had not got extensions of time. It would not have risked such serious confrontation. If my view of Mr Hutchings' evidence is wrong and WGI had been free to do what it wished then his evidence also supports the view that TW would then have had to sort it as it was their responsibility. Thus none of the expenditure and none of the other losses claimed by TW would have been incurred. Accordingly RBH has in my judgment established the case pleaded in paragraphs 74.2.1 and 74.2.2 of the RASC. The other issues on causation on the hydrotite claim that have been raised by the defendants are the same as or overlap issues on causation to which I turn.

Causation

312. In 1989 WGI considered TW's claims for extensions of time. On 20 July 1989 it granted TW 10 weeks for the late release of the Chelsea Hospital for Women (and a further week in September). On 3 August 1989 it sought PMI's views on TW's claim in respect of late and inadequate M&E information:

"Thank you for your letter of 26 July regarding the extension of time granted to the Contractor.

As you know we had at the end of the Contract, received two outstanding claims for extension of time, on in respect of M & E works dated 19^th June and one in respect of the Chelsea Hospital for Women site dated 9^th May. The M & E claim was for 45 weeks' extension and the C.H.W. claim was for 31 weeks. Under Clause 25.3.1, we have to come to a decision on any outstanding claims no later than the completion date which, in this case, was 23^rd July. In our letter of 10^th July, we advised you that it was not possible to come to a conclusion on the M & E claim by that date but we were of the opinion that an extension of time was justified in respect of the C.H.W. site as the site was not finally made available to the Contractor until 13^th March, 10 weeks after the date inserted in the Contract Bills and Drawings, and that we proposed to award an extension of time of that amount.

We do not accept the claim of 31 weeks delay due to the non-availability of the C.H.W. site, but you will recall that the Design Team has always taken the view that the only operation taking place on site during the last 12 weeks of the Contract were cleaning of the new building and the external works. A delay in making this area of the site available must have a significant effect on completion. We considered that a fair and reasonable extension of time would be the period during which the Contractor was unable to progress the whole works in this area, i.e. 10 weeks. It should also be noted that when demolition of the last outbuilding was attempted, it was found to contain toxic waste and the attempt had to be abandoned until such time as it could be rendered safe.

To summarise the situation, the Contractor was entitled to possession of the main site from 2^nd March 1987 until 23^rd July 1989 and the C.H.W. site from 1^st January until 23^rd July 1989 in order to complete the Contract works. In the event the employer, albeit through no fault of his own, was unable to comply with his Contract commitment and the extension of time awarded seeks to remedy the situation with respect to time. We should point out that we do not accept at this moment, that there has been any loss or expense which is recoverable by the Contractor other than the double visit by the sheet piling Sub-Contractor which has already been awarded.

Although Clause 25.4.12 is a new provision in J.C.T. Contracts, the question of possession has been considered by the courts on a number of occasions, the judgment of Lord Justice Williams in Wells v Army & Navy Co-operative Society is, we consider, relevant:-

"If in the Contract one finds the time limited within which the builder is to do the work, that means, not only that he is to do it within that time, but it means also that he is to have that time within which to do it".

WGI did not receive any material comments and told PMI of the consequences – see its letter to PMI of 4 August:

"Thank you for your letter of 7^th July regarding the M & E claim. You have now confirmed by telephone that, despite previous assurances, no additional advice can now be made available to assist in the evaluation of this claim.

We must re-iterate that the extremely technical nature of this claim requires specialist expertise to assess it fully, and this level of speciality can only be provided by an appropriate specialist consultant. Without such expertise we will have to rely solely on the advice of Austin Associates who are of course the Mechanical Engineers involved in the project.

The programme position is generally as reported at the last meeting. The snagging and inspection of high level services is gaining momentum and we are optimistic that there will be a visible improvement in the completion of services over the next few weeks.

In an attempt to improve the situation we have changed the programme sequence by making the vinyl flooring the critical path activity. This is seriously disrupting other trades, due to the isolation of floor areas and the increased duration caused by the addition of the Hydrotite damp proof membrane."

313. WGI consulted AA which provided a lengthy report and informed TW on 18 September of its views:

"We have now completed our examination of the M & E claim for extensions of time submitted on 19^th June and the analysis prepared by Austin Associates. Our views are as follows:-

Clause 2.2.1.	There is nothing in the Bill of Quantities or Specification which overrides or modifies the principal contact conditions
Clause 5.4.	Copies of the contract drawings were issued to you at the commencement of the contract and such further information as was necessary was issued in accordance with a programme agreed by you. It should be noted that your programme P01/C was not issued until August 1987 and the noted dates of 4th May 1987 for the issue of information does not comply with the requirement of clause 25.4.6 in that it is retrospective.
Clause 7.	As we have previously stated this clause relates to setting out of the works at ground level and is thus irrelevant.

In view of the above and the detailed analysis prepared by Austin Associates, a copy of which is enclosed for your information, your claim is rejected."

TW did not accept WGI's views and replied at some length on 29 September:

"We are in receipt of your quite unacceptable letter dated 10^th September 1989 in which you have rejected our claim submitted under cover of our letter of 19^th June 1989 for extensions of time in respect of delays to the mechanical and electrical services installation.

Your letter concentrates on 3 clauses and a subjective defence document from Austin Associates which may be the subject of a very detailed response in the near future dependant upon our deliberations as to the appropriate action at this junction.

You do not begin to address one of the most salient points, namely that upon our late receipt of the co-ordination drawings prepared by the services Consultants most of them proved entirely inadequate for our use in the production of installation and working drawings by virtue of the number of clashes and discrepancies that they contained. We refer below to the particular comments by reference to the several clauses mentioned in your letter.

Clause 2.2.1

On the assumption that you are interpreting the Bills of Quantities and Specification in the way which Austin Associates have (which we find very surprising) it is patently clear that there is indeed a conflict as you are attempting to suggest that we have design obligations contrary to the provisions of the conditions of contract. You have also failed to note that our arguments were submitted in the alternative and we suggest that you reconsider our claim.

Clause 5.4

Whilst we accept that our programme no TWC/B364/B/P01/C was referred to in the claim document, your suggestion that we have only retrospectively applied for the information and that our application therefore falls outside the requirements of clause 25.4.6 is not correct. The programme to which our claim refers is revision C of our initially prepared contract programme, revision A of which was tabled at our meeting of 31^st March and revision B of which was forwarded to you under cover of our letter dated 10^th April 1987.

We enclose for your information a copy of our programme TWC/B364/B/P1/B which makes quite clear that all information relating to the mechanical, electrical, plumbing, and specialist services installations was required to be provided to us by 4^th May 1987. In addition, we would refer you to the minutes of our meeting held on 31^st March 1987, a copy of which is attached, during which a schedule of required information was discussed. The schedule clearly indicated those dates upon which the services details were required. There was no suggestion at that meeting that our requirements could not be complied with. Indeed, Austin Associates undertook to produce all such information during that week. In the event as our claim document makes entirely clear, the information relating to the services was issued extremely late and had a significant effect upon our ability to produce our installation drawings in a timely manner which in turn seriously delayed and disrupted our work.

The fact that the information we required was issued extremely late is a matter upon which there can be no doubt. Furthermore, there can be no doubt that you and Austin Associates had previously been made fully aware of our requirements fully in accordance with our contractual obligations.

Clause 7

We have had many exchanges on this clause previously, and we are quite clearly diametrically opposed. We have previously given detailed reasons why interpretation is correct and on every occasion you have failed to justify your most novel interpretation. This is the style adopted by Austen Associates in their document.

In the light of the further information that we have now provided, in particular, under clause 5.4 above, we must urge you to urgently reconsider your position in the interests of all concerned."

WGI did so. WGI's view changed on consideration of TW's letter of 29 September 1989, which altered the basis of their claim from reliance on P01/C to reliance upon P01/B and the information schedule of 31 March 1987. It carried out its own analysis and accepted the new basis as set out in its letter of 3 October 1989. Essentially instead of working forward from the date by which information might be required it went to the start of installation and worked back. It took TW's six weeks' drawing programme, two weeks' approval period, and eight weeks' mobilisation (making 16 weeks). That approach was in my view correct and certainly reasonable for an architect to take. It was accepted by AA in paragraph 94B of its Defence and by Mr Miers I have already concluded that P01/B was (and certainly would have been regarded in an arbitration as) sufficient for the purposes of clauses 25 and 26 of the JCT conditions. WGI was therefore entitled to act under clauses 25 and 26. WGI wrote to PMI on 3 October with the results:

"Thank you for your letter of 26 September regarding the M & E claim. In our letter of 18 September we stated that our assessment of the claim was based on the analysis prepared by Austin Associates. This analysis had taken the whole of the 12 week period allowed by the contract for the determination of claims and we accepted that it would be factually correct.

The contractors claim document was referred to programme P01/C as evidence for this request for M & E information by 4 May 1987. In their analysis Austin's correctly point out that this programme was not issued until August 1987. They thus claim that the request was retrospective. We have now received from the contractor a letter dated 29 September, a copy of which is enclosed, pointing out that programme P01/B was issued on 10 April 1987 and this document also calls for the information by 4 May. In addition it has been pointed out that the Schedule of Information Required issued at Site Meeting No 1 held on 31 March 1987 calls for all M & E information to be issued commencing 6 April 1987.

We have carried out an analysis of the dates when information was called for and when it was actually issued. This shows that the issue of co-ordinated drawings was on average some 15¼ weeks after the date required. We believe that this matter should be discussed at a meeting of the Design Team when the doubts raised in your letter could also be discussed. We have therefore arranged a meeting for 12 October at 10.00 am at Alexander House."

314. That meeting was duly held. It was attended by Mr Wragg for PMI, Mr Edwards and Mr Craske for AA, and Mr Blair and Mr Hutchings for WGI. The minutes were prepared by WGI but circulated to the other members of the Design Team. The parts relevant to the M&E claim are:

"4.0 M&E Services

4.1 Late issue of information

4.1.1 WGI reported that in coming to this decision on the M&E claim they had relied upon the claim document and the analysis of it prepared by AA. Both these documents were based on TWC Programme P01/B issued in April and the schedule of Information Required issued at Site Meeting No 1 on 31^st March 1987. Both of these documents called for the issue of all M&E information in April/May 1987.

4.1.2 AA stated that whilst they could find no record of having received Programme P01/B they acknowledged the schedule. They pointed out that the same schedule issued at the next Site Meeting showed that this information had been received. They therefore concluded that the information asked for did not at that time include co-ordinated drawings, although TWC now contend that it did.

4.1.3 It was the view of all present that under the terms of the contract TWC were not entitled to receive co-ordinated drawings but that they had been advised, both before tender and after the award of the contract, that they would be provided by way of further information.

4.1.4 AA stated that in their view, having been advised that co-ordinated drawings were to be issued, it was reasonable for TWC to await their receipt before commencing their own drawing programme.

4.1.5 AA further stated that although the meeting held on 11^th August 1987 was the first time a programme for the release of co-ordinated drawings had been discussed, with the benefit of hindsight they should have been pressing for them earlier.

4.1.6 WGI stated that in analysing the latest information for TWC they had used a period of 19 weeks from the issue of co-ordinated drawings to a start on installation. This was made up:-

9 weeks drawing period

2 weeks approval

8 weeks mobilisation

4.1.7 AA did not consider that this was a reasonable period. In their view a period of 16 weeks, made up as follows, was more reasonable:-

6 weeks drawing period including queries

2 weeks approval period including queries

8 weeks mobilisation period including queries

This period was based on the actual times taken for the upper levels which had been carried out jointly with TWC in AA's office.

4.1.8 It was agreed by all present that TWC were entitled to an extension of time and that WGI should use 16 weeks in assessing the claim.

4.2 Inaccuracies & Inadequacies

4.2.1 AA stated that they accepted that there had been errors in the co-ordinated drawings but contended that the effect of these had been countered by their placing of a co-ordinating engineer on site. They did not accept that the drawings were in any way inadequate."

315. Mr Craske subsequently wrote a long letter about the minutes (which I shall shortly consider). Mr Hutchings was asked about paragraph 4.1.8 and remained confident that there had been no dissent at the meeting and the minute was correct. AA submitted with reason that the meeting was chaired by Mr Blair who, as already noted, was, according to Mr Hutchings, a forceful personality and that by the time of the meeting WGI had made up its mind (see paragraph 4.1.1). Mr Edwards who had been present was also asked about the minute at some length. I did not find his answers convincing. At this point he began to recall a great deal of detail, although on other occasions he was unable to do so. Mr Edwards showed in his evidence that he was very good at arguing a case and sticking to his position, right or wrong. He would not have been daunted by Mr Blair. AA's views would not have been disregarded even if they were not accepted. WGI had decided that there should be some extension of time but nevertheless I would have expected AA to have made it clear that it believed that TW was not entitled to any extension at all, if that was its view. I do not consider that it was AA's view. AA was however concerned about the amount of the extension, although in my judgment its attitude was not justified. AA's subsequent letter (of 8 November 1989) is therefore important in what it did or did not challenge for even if Mr Edwards was, contrary to my view, unable to make his points to WGI on 12 October.
316. On 12 October 1989 WGI granted TW an extension of time of 4 weeks in respect of the extra work in vaults and reinforcement (concurrent with the time for CHW) an extension of time which might not have been strictly justified, if, as Mr Miers suggested, there was equivalent float for it would not have been "necessary" to give an extension of time. However a retraction that Mr Miers made at the outset of his evidence resulted in him saying later "I do not know how much float there was, though I simply used three or four weeks as an illustration in one of my parts of my report". In addition he accepted that he did not know what a critical path analysis would have shown in terms of the float time after the publication of programme P01/C. To use PMI's programmes (assuming that they are of value, bearing in mind that WGI either never saw them or did not use them) and not the contractor's programme (which in any event was not satisfactory for these purposes) without a proper analysis is a wholly insufficient basis to say that there is a float or to inquire into its possible effect. All activities have potential or theoretical float (even if the period is negative). What is required is to track the actual execution of the works. On a factual basis this part of the case requires no further discussion. In addition clause 25 refers to "expected delay in the completion of the Works" and to the need for the Architect to form an opinion as to whether because of a Relevant Event "the completion of the Works is likely to be delayed thereby beyond the Completion Date". Under the JCT conditions, as used here, there can be no doubt that if an architect is required to form an opinion then, if there is then unused float for the benefit of the contractor (and not for another reason such as to deal with p.c. or provisional sums or items), then the architect is bound to take it into account since an extension is only to be granted if completion would otherwise be delayed beyond the then current completion date. This may seem hard to a contractor but the objects of an extension of time clause are to avoid the contractor being liable for liquidated damages where there has been delay for which it is not responsible, and still to establish a new completion date to which the contractor should work so that both the employer and the contractor know where they stand. The architect should in such circumstances inform the contractor that, if thereafter events occur for which an extension of time cannot be granted, and if, as a result, the contractor would be liable for liquidated damages then an appropriate extension, not exceeding the float, would be given. In that way the purposes of the clause can be met: the date for completion is always known; the position on liquidated damages is clear; yet the contractor is not deprived permanently of "its" float. Under these JCT Conditions the Architect cannot revise an extension once given so as to fix an earlier date (except in the limited circumstances set out in clauses 25.3.2 and 25.3.3). Thus to grant an extension which preserved the contractor's float would not be "fair and reasonable". Under clause 23.1 the employer is entitled to completion on or before the Completion Date so the employer is ultimately entitled to the benefit of any unused float that the contractor does not need. Few contractors wish to remain on a site any longer than is needed and employers are usually happy to take possession earlier, rather than later, and, if they are not, they have to accept the risk of early completion. In practice however architects are not normally concerned about these points and may reasonably take the view that, unless the float is obvious, its existence need not be discovered. Here TW had not produced any programme from which WGI could be sure that it had any float, still less unused float.
317. On 19 October WGI gave TW 5 weeks for hydrotite. Following the meeting WGI wrote on 23 October 1989 to PMI with its opinions:

"With reference to the discussions at the Design Team meeting held on 12^th October we confirm that we have now reassessed the contractors claim for extension of time due to the late issue of co-ordinated M & E drawings. We are of the opinion that: -

a) The cause of delay is a Relevant Event, i.e. clause 25.4.6.

b) The delay would delay completion beyond the Completion Date.

c) A period of 9 weeks would be a fair and reasonable extension of time in this respect.

d) The extension of time will be in addition to these already granted in respect of the main building works but will be concurrent with the period granted in connection with external works.

The current situation regarding extension of time are as follows: -

Main Building

Sub-structure/Superstructure delays 4 weeks

Late issue of M & E co-ordinated drawings 9 weeks

Hydrotite floor membranes 5 weeks

Total 18 weeks

External Works

Late availability of CHW site 11 weeks

As these categories are concurrent events the total extension at this time is 18 weeks resulting in a revised Completion Date of 26^th November 1989, would you please advise the clients and the Department of our conclusions."

The letter was copied to AA. On 2 November AA was also sent WGI's formal determination that the time for completion should be extended to 26 November under clause 25.4.6, i.e. 9 weeks for M&E (with 7 weeks concurrent with CHW). For what it is worth, PMI raised no objection to WGI's extensions of time either on the grounds that WGI could not act under clauses 25.4.6 or 26.2.1 or otherwise. It is accepted that the extension of nine weeks was arithmetically incorrect by two weeks and should have been seven weeks so in part the case in paragraph 97D of AA's defence is correct.

318. On 8 November AA sent a long letter to WGI about the minutes of the meeting on 12 October. It was prepared by Mr Craske and drafting must have started soon after receiving the minutes (on 24 October) and WGI's letter of 23 October in which WGI assessed 9 weeks as the delay due to the late issue of M&E co-ordination drawings. It did not question the minutes in their entirety and it did not question the grant of some extension of time, even, in my view, as a matter of inference. Above all it did not say that minute 4.1.8 was wrong. In my judgment there was such an agreement. If the minutes were incorrect AA's letter would have said so for its purpose was to take issue with the minutes. Although AA submitted that, with hindsight, the letter could have been better drafted (as a prelude to a submission that it did not quite mean what it said) the letter was in my view very carefully drafted as is apparent from reading it and from Mr Edwards' own evidence. The letter (a copy of which was sent to PMI who did not disagree with the minutes) read:

"We refer to your Minutes of the 12^th October 1989, Design Team Meeting, held for the purpose of considering claims for extension of time submitted by Taylor Woodrow Construction Ltd.

We wish to advise that the Minutes are not wholly agreed in the following: -

Minute 4.1.1

The claim document and the analysis were based upon Taylor Woodrow Construction's Programme P01/C issued in August 1987, not Programme P01/B, as stated in your Minutes.

Subsequent to Taylor Woodrow Construction's claim document, a further submission was made by Taylor Woodrow Construction, in their letter to Watkins Gray International dated 29^th September 1989, which referred to programme P01/B and the schedule of "Information Required" as attached to Site Meeting No 1. Neither of these documents was referred to in the original Taylor Woodrow Construction claim document.

Your minutes also state that the schedule and P01/B both called for the issue of all M & E information in April/May 1987. We should emphasise that we have no doubt that the contractor was not then calling for co-ordination drawings, as is clearly demonstrated by: -

a) The Schedule of "Information Required" was annotated by the contractor to acknowledge receipt of the M & E information required at that time.

b) Austin Associates statement in Minutes of Site Meeting No 1, regarding the Schedule, when we advised that the drawings called for would be issued in one week. This clearly was not a reference to co-ordinated drawings.

We also stated at your Design Team Meeting that we understood that the contractor required the issue of certain information in April/May to enable him to prepare builders work drawings and commence detailed planning, ordering and appointment of specialist sub-contractors. He was readily able to carry out these tasks using the individual service drawings, prior to issue of co-ordination drawings.

Minute 4.1.5

It should be clearly understood that relative to the agreed dates for issue of co-ordination drawings, the "Benefit of hindsight" would be on the part of Taylor Woodrow Construction who should have been pressing for the co-ordination drawings earlier, based upon their knowledge of numbers of draughtsmen available, capability of their drawing office to cope with the preparation of working drawings and the mobilisation period needed.

Minute 4.1.7

Regarding the 6 weeks drawing period, our advice at the Meeting was that based on the actual times taken by the combined resources of Austin Associates/Taymech on the upper levels, this period could be reduced to 3 weeks if the contractor wished to use his best endeavours to minimise the drawing period. We agreed that a reasonable assessment of a "normal" period would be six weeks.

Regarding the 8 weeks mobilisation period, we did advise that the contractors initial activities were to commence installation of drainage and general support brackets. The preparation of manufacturers ductwork drawings and delivery of ductwork would therefore overlap beyond the start on site date. The contractors assessment of mobilisation period was not declared at planning stage. The 8 week mobilisation, worked back from 5^th October, is thus a generous allowance considering the above and additional comments below.

1) An 8 week mobilisation period equates to the time between the 11^th August 1989 meeting and their start on site of 5^th October 1989. It was clearly not the contractors intention to use the 8 week period solely for mobilisation, as final issue of Austin Associates co-ordination drawings was not required by the contractor for Level 1 until week commencing 11^th August 1989 to enable him to commence on time. The contractor was confident, at that time, that he could continue to programme, but subsequent events demonstrated that he had grossly over estimated his drawing office capabilities. "Hindsight" applies here.

2) The contractor did, in fact, commence on time but did not proceed to programme due to the failings of their drawing office to continue to prepare working drawings on time, not because of late issue of co-ordination drawings. The extent of claimed aborted installation, following the 5^th October start, we believe was grossly exaggerated with a view to introducing a claim for delay. At this stage, they had now perceived the inadequacies of their drawing office and they commenced consideration of using WOCAD.

3) Our analysis of their claim document clearly demonstrates that the use of WOCAD introduced a further considerable delay, particularly as their approach was to produce "clash highlight" drawings rather than diligently proceed with working drawings. The analysis clearly demonstrates their erroneous claims of service clashes. Therefore, we consider that the contractor failed to use his best endeavours in preparing the working drawings, particularly considering that he was behind programme. It should be noted that our previous assessment of a possible 3 week drawing period would normally be expected to apply in these circumstances where the contractor was facing delays. (Refer to our analysis pages SH/17 to /21). It is, of course, feasible that less than 3 weeks drawing period could have been achieved by WOCAD but, as our analysis demonstrates, the contractor failed to input the latest information, which resulted in an extended drawing period.

4) The Watkins Gray International use of the 16 weeks drawing/approval/mobilisation period as discussed at the meeting, is agreed as being a reasonable mathematical calculation of a contractors possible approach to a contract of this nature, but it is equally true to say that the period could have been reduced by the contractors better use of resources and/or an approach intended to mitigate delays rather than introduce them.

5) We note your current assessment of an effective 9 week delay due to late issue of M & E co-ordination drawings. The final Watkins Gray International assessment of the Taylor Woodrow Construction claim, some of which we understand is still to be submitted and/or resubmitted, should obviously take the above into account as well as our detailed analysis."

The letter therefore did not take exception to Minute 4.1.2 (although the comments on Minute 4.1.1 were plainly relevant to it), or to Minute 4.1.8. If AA really thought that a 16 week extension of time was not justified it would (and should) have said so. Anybody reading AA's comments on Minute 4.1.7 would have concluded that AA was only questioning WGI's methodology, and was not saying that its conclusion was untenable. Again I find AA's explanation unconvincing as to why it did not do so either on 12 October or later. I am sure that Mr Edwards would have told WGI on 12 October or later of the period that he thought was justified (as opposed to writing to protect AA from criticism of why it had created the situation in which TW had to be given the extensions). Mr Hutchings said, perfectly understandably, that there was nothing in the letter which caused him to think that the record of the discussion on 12 October was inaccurate in any sense that mattered. In the circumstances it is not surprising that WGI did not reply. In addition, by the time it received the letter, it had acted.

319. In paragraph 97A of its defence AA refer to RBH's original case which is no longer pursued. The fact that it does not do so is a matter only of comment. It is in my judgment patently obvious that TW was delayed up to November 1989 by the lack of AA's drawings. The co-ordination drawings for level 1 (the critical level) were due (indeed overdue) 8 weeks earlier than 14 August 1987 as the planned installation date was 5 October 1987. TW could have started to install before that date, as Mr Hutchings confirmed, so there must have been some delay (unless it was mopped up by float as to which I have no acceptable evidence, merely supposition). AA's reference to the absence of resources prior to 14 August is in my judgment of no consequence unless TW had had the drawings at that time. Thereafter TW's difficulties (including WOCAD) were known but unquantifiable except as a matter of judgment and were affected by the quality of the drawings. That is one of the reasons why construction contracts appoint as architects, engineers, surveyors or other contract administrators people with knowledge of the contract (or access to those with knowledge of the contract) as they are best able to gauge such matters and their possible effects. To upset the judgments of such people in an arbitration or litigation requires similar first-hand evidence, not desk studies based on documents. The matters pleaded by AA in paragraphs 97A, 97B and 97C of its defence (in so far as they still open to AA to advance) are not in my judgment made out. I accept the case set out in paragraphs 97D, 97E and 97G of the defence. Here Mr Hutchings made some mistakes which he accepted. However Mr Miers emphasised in paragraph 13.9 of his Report:

"Generally the matter of assessing an extension of time is a difficult and highly demanding process, and in my experience many architects make errors in the application of the principles under the contract and the methodology to be applied."

His experience was that "lots of competent architects actually deal with extensions of time in very different ways and in ways in which [he] would consider them to be making mistakes". AA's case seems to me to involve being very wise after the event, especially since, in order to establish it, AA needed a very large and detailed report from Mr Miers which in my judgment showed how, even with due care, mistakes can easily be made, although some were quite minor and of little proven consequence. I was not satisfied that WGI had ignored anything or taken something into account which no competent architect should have done (nor did Mr Miers so suggest). WGI formed a judgment. For the purposes of this litigation, Mr Miers showed that, had WGI the time and resources available to him, it would have formed a different judgment. So far as I am concerned the judgment of WGI was not gravely mistaken. It is plain that at the time WGI and Mr Hutchings understood the requirements for the determination of an extension of time. Not only are there the extensive discussions and correspondence in 1989 but on 28 February 1990 Mr Hutchings wrote:

"With regard to your general assertions regarding your obligations to provide such additional information as we require, we should point out that the conditions precedent to the award of the extension of time you seek are: -

(i) that the progress of the works has been or is likely to be delayed

and

(ii) that the completion of the works is likely to be delayed beyond the Completion Date.

Since both of these conditions are the subject of the Architect's opinion, it seems reasonable for us to require such additional information as would allow that opinion to be an "informed opinion". What better way of demonstrating compliance with i) above can there be but an analysis of the critical path at the appropriate time?"

320. Similar considerations apply to the case on blockwork disruption (which I digress slightly to consider at this point). I was not persuaded by AA to conclude that blockwork disruption did not result from any lateness or quality of AA's co-ordination drawings. Essentially RBH's case was that because of the late arrival or quality of AA's drawings TW could not produce drawings with the correct sizes of holes so the blockwork sub-contractor had to be told to form holes with margins of tolerance. There was a hold up to the installation of M&E services until a hole of right size was formed. TW also fell behind in the production of builders' work drawings due to the late arrival of AA's drawings and the need to resolve clashes etc. WGI decided that there had been out of sequence working and instructed NNN to determine what direct loss or expense might be ascertained. The instructions were given in November 1989 in respect of the first extension of time and in April 1992. On each occasion any delay was concurrent. Mr Hutchings was shown documents which suggested, plausibly, that TW's problems were also created by its subcontractors, e.g. Ben Barrett. Mr Hutchings agreed that, if he had known those facts, it might have affected the way he had treated blockwork issue, although as he also said that was "only part of the story" and that it would "certainly have been relevant to Northcroft's assessment of the quantum of loss and expense" caused by late or inadequate M&E information. Mr Miers thought that the material available did not justify WGI's opinions, e.g. that there had been eight weeks of disruption. However in my view RBH was also right in submitting that Mr Miers' views should not be accepted since he had made two assumptions, neither of which was supported by evidence and which affected his opinions – the sequence that TW intended to adopt and the fact that blockwork could not have started on time (thus giving TW time to prepare builders work drawings). Accordingly, even if it had been right to do so on the basis of Mr Miers' commentary, which was a classic example of expert evidence directed to answering questions of fact and otherwise which were for the tribunal to decide, I could not have concluded that there had been no disruption attributable to the lack of or inadequacy in AA's drawings. As Mr Hutchings rightly pointed out these questions were for NNN and are thus to be raised in the assessment of quantum. The amount recoverable may well be questionable. The instructions given to NNN by WGI were proper and reasonable on the basis of the information then available to WGI which in my judgment carried out an investigation and analysis which was more than adequate. The material presented by TW was voluminous (just as AA presented WGI with extensive analyses and commentaries) so it is not as if WGI had not had the facts at its disposal. The criticism here is, once again, of the opinion which WGI formed, based on hindsight. I thus reject the contention that, with the exception of the two weeks' error, the extension of 9 weeks (with 7 weeks concurrent) that was granted on 2 November was not justified.
321. NNN ascertained further loss and expense in its letter of 10 November:

"Following recent discussions we write to confirm that further payments against the contractor's claims for loss and expense will be included in the current interim valuation (Number 33). These are against items accepted by the Architect, the details of which are as follows:-

1. (a)	1. (a) Direct loss and expense under clause 26.2.7 of the Conditions of Contract, based upon Watkins Gray International's letter to the Contractor dated 21st April 1989, due to disruption to the regular progress of the works whilst carrying out the substructure and superstructure operations (see also Watkins Gray International's letter to the contractor dated 12th October 1989)		£157,000
(b)	(b) Additional cost for construction of the covered walkway based upon Watkins Gray International's letter to the Contractor dated 27th April 1989.		£ 15,160
2.	2. Direct loss and expense for two stage piling operation along the western boundary of the site, based upon Watkins Gray International's letter to the Contractor dated 8th May 1989.		£ 5,788
3.	3. Prolongation costs associated with the four week extension of time for substructure and superstructure works and the five week extension of time for Hydrotite flooring membrane. These are based upon Watkins Gray International's letters to the Contractor dated 12th and 23rd October 1989.		£214,000
4.	4. Prolongation costs associated with the nine week extension of time due to late issue of co-ordinated drawings, based upon Watkins Gray International's letter to the Contractor dated 2nd November 1989.		£216,000

This information supersedes that set out in our letter to you dated 11^th September 1989 and all ascertainments are interim.

Could you please notify the Department of Health of these amounts which now total £607,948 and contact us if further information is required.2

322. On 24 November WGI revised its assessments:

"We have now completed our consideration of the claims for delay contained in your letters of 30 October and 10 November. We are of the opinion that:-

a) the cause of delay is a Relevant Event, i.e. clause 25.4.5.1.

b) the works would be delayed beyond the Completion Date.

c) A further period of 5 weeks would be a fair and reasonable extension of time.

As this further extension would prolong the works into the statutory Christmas holiday period we enclose our Notification fixing a new Completion Date of 14 January 1990.

With regard to loss and/or expense the Quantity Surveyor will extend his ascertainment of the previous Hydrotite extension to include this further extension.

TW was granted the extension of time to 14 January on the same day. As already recounted and considered, WGI gave a further extension of time of two weeks on 14 August 1990 for the late issue of M&E drawings. On 6 April 1992 WGI granted TW five weeks for inadequate M&E drawings.

323. The issue of causation raised discussion about a "point of principle" which was directed to seeing whether it was possible, within the confines of the agenda ordered by Judge Hicks, to achieve a degree of finality. I have earlier referred to the fact that difficulty occurs where there is no clear line separating causation from quantum. There was much argument about the point of principle, including rather specious submissions about its late arrival which deserve little sympathy if the overriding objective is to identify and dispose of issues without material prejudice in order to avoid further litigation. At times the submissions of one or other of the defendants seemed to be motivated to postpone a decision on an issue upon which it might not succeed, even though it could have been decided without any trouble, rather than bringing this saga to a conclusion. That said, the final tranche of the trial is to deal with mitigation and the quantum of damages and it would not be right to intrude into that area (and I shall later revert to this point). The point however was about causation and what type of loss might and might not be recoverable. Part of the problem arose out of an apparent wish by RBH to hold PMI liable for the consequences of the second extension of time of seven weeks granted by WGI for the hydrotite instruction SI 6 – see paragraph 212(4) of its Opening. That was objected to by PMI – see section H of its opening – but might be in issue. Other parts arose out of the position in which RBH found itself by not calling evidence from TW or any expert on what delay might actually have been caused, especially in relation to the M&E timing claim. From the point of view of RBH, the position was further complicated, since AA had pleaded in paragraph 97A ff of its defence that WGI ought not to have granted TW the three extensions of time in relation to the M&E information and that they were "incorrect and unreasonable" but did not allege that WGI had been negligent. Paragraph 97A read:

"97A. Further in relation to paragraph 59.4 of the Re-Amended Statement of Claim, AA adopt the Claimant's primary case that for the reasons set out in paragraphs 91.1-3, 95, 101, and 108 of the Re-Amended Statement of Claim the extensions of time dated 2^nd November 1989, 14^th August 1990 and 6^th April 1992 ought not to have been granted by WGI. In addition AA contend that the said extensions of time were incorrect and unreasonable on the further grounds pleaded at Paragraphs 97B to 97H below."

Paragraphs 59.1 of the RASC recited that TW had made claims and paragraph 59.2 pleaded the extensions of time granted by WGI. AA's Defence in paragraphs 97 to 97H was very specific: for example paragraph 97D read:

"When calculating the alleged period of delay under the extension dated 2^nd November 1989, and possibly the extension dated 14^th August 1990, WGI either made a two week calculation error or erroneously allowed an additional two week period for Easter when no such period should have been allowed."

The issues arising from these paragraphs were to be tried by the order of Judge Hicks. RBH did not in the event pursue the claims in the paragraphs in the RASC adopted by AA. Mr Miers was called by AA to establish its case but not to say that WGI was negligent (with the exception of the extension for safety cabinets which Judge Seymour found not to have been negligent). Thus he said on a number of occasions in the conclusions to his report:

"I consider that WGI were mistaken in the way in which they approached the assessment of this EoT and in their calculations, and that as a consequence the extension of time they awarded was greater than it should have been.

As to whether in making the mistakes I have identified, WGI fell below the standard to be expected from a reasonably competent architect, this is a complex issue and a difficult question and is a matter I wish to consider further in the light of the continuing discussions with the other expert architects and the release of the expert programmers' reports."

In his evidence Mr Miers did not really depart from that view since the opinions that he was called to express were based on the documents (which appeared at times not to be complete e.g. he had not been asked to look at TW's preliminary programme P01). Indeed he accepted that neither in his report nor anywhere else had he criticised PMI or WGI for falling below the standard of care that he had considered, i.e. the contractual standard. AA also cross-examined Mr Hutchings on the reasoning behind his decisions. After some discussion at the outset of the trial I said that the point would be dealt with in the final submissions.

324. Mr Edwards-Stuart produced a document on the "Point of Principle in relation to Causation". Mr Bartlett said that he had considerable difficulty in understanding it and made a list of queries to explain the problems. I therefore left RBH to reconsider and to clarify what it was seeking. There was no express reference to it in RBH's closing written submissions (which counsel for the defendants had before they made their final submissions, in accordance with common practice) although, in relation to the M&E timing claim, paragraphs 296 and 297 said

"296. WGI's grant of 11 and 5 week extensions of time, respectively, was a natural and probable consequence of the late issue and poor quality of the drawings, as were the instructions to NNN to ascertain TW's loss and expense. Brompton's position on quantum is that it is entitled to recover the costs that it occasioned by these extensions of time, since it is not alleged that they were granted negligently (irrespective of whether either the extension of time or the sum ascertained was in truth right or wrong as to amount).

[RBH added a footnote: "In fact, on the current state of the authorities these costs may even be recoverable if the EOTs were granted negligently".]

297. For this reason, Brompton submits that the question of whether there was in fact any, and if so how much, delay in fact does not have to be considered, save possibly in the context of certain sums claimed based on the settlement of the arbitration."

(There was a comparable paragraph in relation to the hydrotite claim.) AA did not therefore in its final submissions, both written and oral, grapple with the point that had earlier been canvassed, although its own submissions naturally required consideration of some of the same territory. It was not until some way into the final submissions of Mr Williamson that it emerged that the point or some point had not been abandoned. This was not satisfactory, nor were the explanations offered for the absence of any response to Mr Bartlett's queries ("to formulate detailed issues meeting all the objections was going to take time that we just did not have to devote to it"). The next day, just as Mr Bartlett was tendering submissions on paragraph 296, Mr Edwards-Stuart produced further "Notes on the 'point of Principle'". These began:

"The Nature of the 'Issue'

1. The 'issue of principle' is in fact a practical issue which arises to be determined on the evidence before the court. In essence the issue is

"Has the claimant established a causal link between the breaches of duty and the extensions of time?"

2. This, of course, gives rise to a potential issue of principle, namely:

"If WGI decision to grant a particular extension of time was wrong, what quality of error must be established to break the chain of causation?"

3. In practical terms this is encapsulated in the submission made in paragraph 296 of Brompton's Closing (and paragraph 374 for Hydrotite)."

The formulation still left something to be desired. For example, issue 1 did not record AA's case which raised the question of the causal link between the event which was the breach of duty and the extension of time. The question of the proposed point of principle was ultimately the subject of further written submissions made after the end of the hearings.

325. In my judgment it is (and was) clear that the two issues arose out of paragraphs 97A ff of AA's Defence (and in particular 97(d)) which essentially say that RBH is not entitled to recover on the basis of the extensions of time granted as they were made erroneously. Similarly on the hydrotite claim the issues arose out of PMI's defence as PMI put WGI's extensions of time on the M&E claims in issue, as pleaded in paragraph 74.2.2 of the RASC (quoted above in the discussion of that claim). WGI was not questioning its own extensions. There can therefore be no prejudice to any defendant. The evidence that each considered necessary was tendered. The issues raise the conclusions to be drawn from the evidence.
326. RBH's claim is based on its settlement of the arbitration with TW. For present purposes that arbitration is to be treated as being about what more might be due to TW for the delays that it had experienced and whether RBH were entitled to recoup anything already paid or to recover liquidated damages on the grounds WGI had granted too generous extensions of time and had certified too much in favour of TW. The claims are to be considered as contractual, i.e. made under the provisions of the contract although some of TW's claims might have been presented or might have succeeded as claims for breach of contract. Each defendant must in my judgment be taken to have known when each made its contract with RBH that any breach by it of its contract would or might result in RBH becoming liable to the appointed contractor to pay compensation under the contract made with it or for damages for its breach or in RBH being unable to recover from the contractor amounts (including damages for breach of contract) which it would otherwise have recovered but for the defendant's breach. It was also contemplated that RBH's contractor would be engaged under the JCT conditions – WGI's contract incorporated the RIBA Conditions of Engagement and otherwise presuppose the use of the JCT form; the Preamble to the Supplementary Annexure forming part of AA's contract refers to it; and the Project Procedures Document applicable to the services of all the consultants is premised on the use of the JCT conditions.
327. The JCT Conditions constitute the Architect the primary decision maker or arbiter of the parties' rights and liabilities under the contract. So long as the Architect acts within the authority given by the contract the certificate, opinion or decision is valid and may be relied and acted on. It is only if a party to that contract is dissatisfied with the view of the Architect that it may be opened up, reviewed and revised – see Article 5 of the JCT Conditions:

"5.1	In case any dispute or difference shall arise between the Employer or the Architect/Supervising Officer on his behalf and the Contractor, either during the progress or after the completion or abandonment of the Works, as to	In case any dispute or difference shall arise between the Employer or the Architect/Supervising Officer on his behalf and the Contractor, either during the progress or after the completion or abandonment of the Works, as to
5.1	.1	The construction of this Contract, or
5.1	.2	Any matter or thing of whatsoever nature arising hereunder or in connection herewith including any matter or thing left by this Contract to the discretion of the Architect/Supervising Officer or the withholding by the Architect/Supervising Officer of any certificate to which the Contractor may claim to be entitled or the adjustment of the Contract Sum under clause 30.8.2 or the rights and liabilities of the parties under clauses 27, 28, 32 or 33 or unreasonable withholding of consent or agreement by the Employer or the Architect/Supervising Officer on his behalf or by the Contractor, but
5.1	.3	Excluding any dispute or difference under clause 19A, under clause 31 to the extent provided in clause 31.9 and under clause 3 of the VAT Agreement,
	then such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed between the parties to act as Arbitrator, or, failing agreement within 14 days after either party has given to the other a written request to concur in the appointment of an Arbitrator, a person to be appointed on the request of either party by the President or a Vice-President for the time being of the Royal Institute of British Architects. ………	then such dispute or difference shall be and is hereby referred to the arbitration and final decision of a person to be agreed between the parties to act as Arbitrator, or, failing agreement within 14 days after either party has given to the other a written request to concur in the appointment of an Arbitrator, a person to be appointed on the request of either party by the President or a Vice-President for the time being of the Royal Institute of British Architects. ………
5.2	Such reference, except	Such reference, except
	.1	On article 3 or article 4; or
	.2	On the questions
		Whether or not the issue of an instruction is empowered by the Conditions; or whether or not a certificate has been improperly withheld; or whether a certificate is not in accordance with the Conditions; or
	.3	On any dispute or difference under clause 4.1 in regard to a reasonable objection by the Contractor, and clauses 26, 32 and 33,
	shall not be opened until after Practical Completion or alleged Practical Completion of the Works or termination or alleged termination of the Contractor's employment under this Contract or abandonment of the Works, unless with the written consent of the Employer or the Architect/Supervising Officer on his behalf and the Contractor.	shall not be opened until after Practical Completion or alleged Practical Completion of the Works or termination or alleged termination of the Contractor's employment under this Contract or abandonment of the Works, unless with the written consent of the Employer or the Architect/Supervising Officer on his behalf and the Contractor.
5.3	Subject to the provisions of clauses 4.2, 30.9, 38.4.3, 39.5.3 and 40.5 the Arbitrator shall, without prejudice to the generality of his powers, have power to direct such measurements and/or valuations as may in his opinion be desirable in order to determine the rights of the parties and to ascertain and award any sum which ought to have been the subject of or included in any certificate and to open up, review and revise any certificate, opinion, decision, requirement or notice and to determine all matters in dispute which shall be submitted to him in the same manner as if no such certificate, opinion, decision, requirement or notice had been given.	Subject to the provisions of clauses 4.2, 30.9, 38.4.3, 39.5.3 and 40.5 the Arbitrator shall, without prejudice to the generality of his powers, have power to direct such measurements and/or valuations as may in his opinion be desirable in order to determine the rights of the parties and to ascertain and award any sum which ought to have been the subject of or included in any certificate and to open up, review and revise any certificate, opinion, decision, requirement or notice and to determine all matters in dispute which shall be submitted to him in the same manner as if no such certificate, opinion, decision, requirement or notice had been given.
5.4	The award of such Arbitrator shall be final and binding on the parties. …….."	The award of such Arbitrator shall be final and binding on the parties. …….."

328. The powers recited in clause 5.3 may of course be exercised by a court as confirmed by Beaufort Developments (NI) Ltd v Gilbert-Ash (NI) Ltd [1999] 1 AC 266. Unless and until the decision of the Architect is set aside or altered by an arbitrator or court it remains binding on the parties since the parties have agreed to that mechanism by which their rights and obligations may be adjusted, varied or defined. Accordingly a consultant who is aware that its advice or its services may be employed under such a contract must be taken to have foreseen both that its acts or omissions may lead to the Architect issuing a certificate, forming an opinion or making a decision which will have the effect of altering the rights and obligations of a party and to that party thereby losing something to which it would have been entitled but for the act or omission. If the act or omission is a breach of contract then that which the party loses will be recoverable as damages (so far as money provides adequate compensation) on the application of basic principles, notably Hadley v Baxendale (1854) 9 Exch 341. Either limb of the "rule" in that case is here applicable for even if the effect of an event which leads to an instruction, and ensuing opinion, certificate or decision does not arise "naturally, i.e. according to the usual course of things" then it must in the present circumstances be "such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it." As I have set out the consultants had knowledge or must be presumed to have knowledge of particular circumstances, e.g. the typical conditions of contract or likely contract with RBH.
329. By agreeing to leave certain matters to the decision of a third party and, unless and until agreed or decided otherwise by an arbitrator or court, to be bound by the decision, the contracting parties necessarily also accept that, in so far as the decision requires the formation of a judgment (whether of fact, of opinion or of law), the decision may not be perfect, or even right either in fact or in law. Protection lies in the contractual provision whereby an arbitrator or court is entitled to supplant that judgment. Another consultant has therefore also to accept that the losses recoverable may be based on a flawed or questionable judgment. I do not however consider that the consultant can avoid liability for the consequences quantified by the relevant decision since that is an integral part of the framework in which the consultant's advice is given or services are rendered. On the other hand, whichever limb of Hadley v Baxendale applies, a consultant cannot be taken to have contemplated that the relevant party or parties would accept as binding a decision that was not authorised by the contract or, even if authorised, was made negligently, i.e. it was so far outside the legitimate areas of judgment that it was not one which a competent decision-maker could reasonably have arrived at by the exercise of proper professional skill and care. This is not strictly another way of breaking the chain of causation as it is concerned with the type of damage that is not recoverable in law, although in practical terms there might be little difference. I was referred to Skandia Property (UK) Ltd v Thames Water Utilities Ltd [1999] BLR 338. In that case the issue was whether the claimant could rely on the fact that remedial works had been undertaken on the advice of an expert. There is therefore no direct parallel since TW did not rely on WGI's decisions as it was contractually bound by them and the relevant defendants knew that it was (or was likely to be so bound). However the Court of Appeal held that on the authorities the question of whether it was reasonable or not to do so (and if not, whether the chain of causation was thus broken) was a matter of common sense. Waller LJ who gave the leading judgment said (at page 343):

"The authorities

We had cited to us Galoo Ltd (in liquidation) v Bright Grahame Murray (a firm) [1994] 1 WLR 1360 in particular Glidewell LJ's judgment from 1369 to 1375 of the latter report. In that case it was agreed that in the context of that case the principles applicable to liability in either contract or tort are the same (1369H). It is common ground that in assessing liability under s. 6 of the Water Act 1981, the court is not applying any different principles. At the end of the passage at 1374H Glidewell LJ poses the question:

"How does the court decide whether the breach of duty was the cause of the loss or merely the occasion for the loss?"

and he answers it by applying the Australian decisions to which he had been referred "By the application of the court's common sense".

In a recent Lecture "Common Sense and Causing Loss" given on 15 June 1999 Lord Hoffmann has suggested that simple appeals to common sense do not provide the answer. He argued that in answering the question whether a certain loss or damage was caused by a breach of duty, what was really required was to identify the right question as to what damage the duty was meant to guard against or from which a party was intended to be protected.

Mr Allen relied on The "Sivand" [1998] 2 Lloyd's Rep 97, and in particular the judgment of Hobhouse LJ in that case. It is of interest that he commences his judgment by saying that:

"As is often the case, once the question has been correctly identified, the answer to be given to that question is straightforward."

In that case the plaintiffs' harbour works including dolphins had been damaged. They employed a contractor to repair the damage. During the repair work a jack-up barge collapsed due to unforeseeable sea-bed conditions. The plaintiffs under the contract were liable to pay the extra costs of the sub-contractor. Hobhouse LJ's legal analysis is at page 107 concisely summarised under five heads as follows:

"(1) The defendants negligently and in breach of the duty of care which they owed to the plaintiffs, damaged the plaintiffs' property (the harbour works including the dolphins) thereby causing the plaintiffs loss.

(2) The plaintiffs' cause of action was then complete and the sole remaining question was the assessment of the plaintiffs' loss.

(3) The plaintiffs were under a duty to mitigate their loss and in reasonable mitigation chose to employ the contractors on the ICE terms to carry out the necessary repair work.

(4) The cost of this mitigation was the sums which the plaintiffs became liable to pay to the contractors for the carrying out of the repair work under the ICE contract. This cost included the sum of £178,2350.47.

(5) The defendants' liability in damages to the plaintiffs includes the expenditure which the plaintiffs have thus incurred in the reasonable mitigation of their loss. There is no allegation that the steps which the plaintiffs took increased rather than mitigated their loss but, even if they had, this would have made no difference to the defendants' liability provided that the plaintiffs had acted reasonably."

Pill LJ put the matter this way. He would accept the above legal analysis but thought there should be added to proposition 2 the words "for which the defendants are responsible". His conclusion at page 109 was:

"The defendants accept that the damage to the harbour works caused by their vessel had to be made good and that it was reasonable for the plaintiffs to contract with contractors who would do the work on the terms of the ICE contract. Clause 12 of the conditions of the relevant contract provides an entitlement to additional remuneration for the contractor who encounters physical conditions which could not reasonably have been foreseen by an experienced contractor. Having conceded that it was reasonable for the victim of the tort to accept a condition involving a contractual liability for unforeseen physical conditions, the defendants seek to argue that they are not liable for the contractual liability upon the plaintiffs held to result from the operation of the clause."

330. In my view the whole of this passage is instructive, but in particular the judgments of Hobhouse and Pill LJJ which show that a party in the position of RBH may recover as damages what is due under the operation of a contract provided that it acted reasonably in making the contract. It was conceded in The Sivand that it was reasonable for a contract with the ICE conditions to be used. Reasonableness is not an issue since the defendants all agreed to act under the contract between RBH and TW by which RBH became liable to TW. That contract provided mechanisms whereby the rights and obligations of the parties were adjusted by the architect's decisions, just as clause 12 of the ICE conditions gives the Engineer power to certify additional time and money in the event of certain conditions being encountered. Certainly as a matter of common sense there can in my view be no doubt that the breaches of contract which I have found caused TW to make claims which WGI considered to be justified under the contract. Since all but one of WGI's decisions, even if containing errors in fact or in law, were ones which it was not negligent for WGI to make, I cannot see how any defendant can avoid liability to RBH for the consequences. It is not in my judgment necessary for RBH to establish that WGI's judgments can be supported in full, i.e. that TW was delayed (or disrupted) to the extent decided by WGI. For the purposes of the "point of principle" the claimant has established a causal link between the breaches of duty and the extensions of time (as formulated by RBH).
331. Mr Edwards-Stuart referred to passages in Clerk & Lindsell on Torts, 18^th ed, at 2-41 and 2-45, which was cited with approval by Buxton LJ (with whom Laws LJ agreed) in Roberts v Bettany [2001] EWCA Civ 109; [2001] All ER (D) 128, paras 18- 19:.

"Four issues need to be addressed. Was the intervening conduct of the third party such as to render the original wrongdoing merely a part of the history of events? Was the third party's conduct either deliberate or wholly unreasonable? Was the intervention foreseeable? Is the third party wholly independent of the defendant i.e. does the defendant owe the claimant any responsibility for the conduct of that intervening third party? ...

The most that can be said is that deliberate interventions are more likely to breach the chain of causation than negligent acts, negligent conduct is more likely to constitute a novus actus than non-negligent conduct, and positive acts are more likely to operate as novus actus than omissions"

Later Buxton LJ said in another part of the judgment:

"It was not suggested by Mr Crowther, and was not held by the judge, that Delyn had actually been negligent. Indeed, the passage that I quoted from his judgment establishes that he would have come to the conclusion that he did, even if Delyn had been positively found merely to have been incompetent or ill-advised or ill-judged, rather than negligent. This combination of circumstances falls far short of what is required in law to constitute a successful defence of novus actus interveniens. To some extent that is a matter of impression but only to some extent. What has to be demonstrated, in my judgement, is that the intervention has, as Cooke J said, turned the negligent act of the defendant into a matter of surrounding circumstances. That is plainly not this case. What was done was in direct response to a hazardous situation created by the defendants. It was at their peril that an intervener might not act with full competence and might cause some further or different injury. That is apparently, on the evidence before the judge, what happened in this case, but it does not exculpate in law, in the circumstances of this case, the defendants from the consequences of their original act of negligence. The point is a short one. But I am satisfied that the judge approached it too shortly and approached it on a too mechanistic and narrow view of the doctrine of novus actus."

These extracts show that, even if WGI's decisions had been "incompetent or ill-advised or ill-judged", the chain of causation would not have been broken, unless they had been negligent. Thus even the admitted error of two weeks may be ignored. I answer the questions posed in Clerk & Lindsell as follows, though not in quite the same order. The intervening conduct did not render the breaches of duty part of the history; one of the reasons for the existence of the duties (certainly AA's) was to avoid that subsequent history, and, as such, was foreseeable. WGI's conduct was obviously deliberate, but not in the sense of a deliberate intervention, as it was required under the contract. It was not the act of an independent intervener, as WGI was appointed by RBH. It was certainly not wholly unreasonable. Accordingly, applying that approach, the chain of causation was not broken.

332. If it is open in law to a defendant to question the settlement on the grounds that it was reasonably avoidable since RBH ought to have taken the arbitration to a conclusion (as an entirely different picture would have emerged and TW would have lost decisively) whereby the reasonableness of the settlement is still in issue then the final tranche will be the occasion upon which a defendant may be able to do so. At that stage Walker v Medlicott [1999] 1 WLR 727, cited by Mr Taverner, might be relevant and it might be open to AA, for example, then to require RBH as claimant to establish in that context the reasonableness of WGI's extensions (as it contended, based on Skandia). (I do not decide that any defendant is so entitled.)
333. The approach in Roberts v Bettany also, in my view, helps to explain why I consider that AA's submissions are wrong. They were to the effect that what should be decided were each of the following steps: breach; actual critical delay; actual disruption; whether either or both were caused by AA; whether WGI's extensions of time were wrong with findings about the reasoning. Mr Bartlett submitted that there was no legal logic in picking out the step of the extension of time and asking whether that was caused (in the legal sense) by the breach of duty, although he accepted that the effect of the extension of time cannot sensibly be considered separately from the debate about the significance of the arbitration, which will be considered in the quantum trial. In my view that submission misses the point of what was described as the "short-cut", which is in my view the correct analysis. If the consultant's duty were viewed solely as one actionable in tort then the object would be expressed in terms in taking care to see that RBH was not exposed to liability to TW. That liability does not arise as a result of RBH having to prove each of the steps; it arises as result of WGI's decisions and any resulting dissatisfaction by either party with them which gives rise to one or more disputes referable to arbitration. The intervening steps may have to be explored at the next stage but they do not need to be decided at this stage. Mr Bartlett also submitted that, even if the extensions of time were the relevant damage, the second issue suggested by RBH was an incorrect attempt to reverse the burden of proof, but that is wrong as RBH had to satisfy me (as it has) that "the quality of error" did not break the chain of causation. In my judgment the answer to the "potential point of principle" is: a negligent error. (I have already excluded an unauthorised decision.) The defendants, such as AA, have to establish the error; the burden then returns to the claimant. For the same reasons I reject the submissions by PMI that the extent of the delay to TW has to be established or found at this stage.
334. I therefore consider that RBH is right in its submission that, for example, on hydrotite, WGI's first extension of time was a natural and probable consequence of the issue of SI 6, as was its instruction to NNN to ascertain TW's loss and expense. On the M&E drawings issues the same follows.
335. I cannot be really confident about the extent of actual delay that was caused to TW by the problems with AA's drawings (at this point their lateness and inadequacy merge inextricably) in the absence of a proper programme and evidence from TW itself. I cannot take account of the exercise conducted by Mr Gibson as he was not called nor can I do so indirectly, via criticisms of and references to his work, especially by experts such as Mr Miers who was really doing no more than commenting on allegations of and opinions about delay. That said, it is inconceivable, as RBH submitted, that the delay in issuing the co-ordination drawings, for level 1 in particular, and the poor quality of the drawings when issued did not cause significant delay and disruption to TW. In my judgment the period of actual delay was of the order of eight weeks. AA ought to have prepared the drawings within 16 weeks with about 7 weeks for level 1. The latter ought therefore to have been ready by mid-June 1987 at the latest so when they were issued on 14 August 1987 they were 8 weeks late. The level 2 drawings were 6 weeks late when issued on 18 September 1987. Although TW must have had some float in its planning the extent has never been established and for the reasons that I have already given no account could be taken of it. It was to be used to accommodate the risks for which TW was liable under the contract, such as problems in getting draughtsmen, WOCAD, blockwork sub-contractors etc. Those risks certainly eventuated but their criticality is not clear, although, with the exception of WOCAD and some elements of the blockwork disruption, they could not be linked to any of the defendants' defaults. In addition the question is whether they exceeded the float so as to have caused TW to have finished late, even if there had been no other delaying events. That is unresolved and it seems unlikely. Doing the best one can, the potential critical delay created by the eight week delay in issuing the drawings for level 1 appears not to have been materially averted or overtaken by other events for which TW was responsible. That period takes no account of the effects thereafter of having to deal with the inadequacies in AA's drawings and if it were eroded or were inaccurate – see Mr Hutchings' errors – then those effects could make it up again. If a period has to be found then in my judgment it provides the best measure of the probable delay to completion caused by AA's drawings.

Summary of Conclusions

Blue Land

336. PMI was in breach of its retainer with RBH for Mr Wragg failed in May 1986 to check drawing PW 185 when it was received from WGI, as a result of which the contract was concluded with a drawing which did not set out correctly the areas available to TW. Had PMI exercised reasonable skill and care the error would have been detected and the contract would either have been concluded on the correct basis or it would have been varied by agreement. TW's claim against RBH was therefore a direct result of PMI's breach of duty. PMI's breach of duty however occurred more than six years before the writ was issued on 21 January 1993 and so RBH's claim for breach of contract is barred by the Limitation Act 1980. Since RBH did not suffer any damage until the contract with TW was made, its claim in tort against PMI is not so barred.
337. WGI was also in breach of its retainer. A prudent architect in the position of Mr Hutchings exercising reasonable skill and care ought to have checked TW's sketch P/01 to see that TW was using the area allocated. Had he (or some one else in WGI) done so it would have been obvious that TW was not using the whole of the site. Given that the areas were not small and congested the reason should have been found and RBH or PMI alerted to the need for a change which would have been made, as I have set out above. WGI's failure to act is therefore also causative of the TW's claim for the same reasons that I have given in relation to PMI. WGI's breach of duty occurred after January 1987 so RBH's claims against it are unaffected by limitation.

Advice Claim

338. AA's statement to PMI in February 1987 that the bulk of the design information was ready for issue was not true and made negligently by AA and in breach of AA's contract. Its substance was passed on to RBH without qualification by PMI and led to RBH authorising TW to start work on 2 March. If RBH had been told of the true situation either TW would not have been allowed to start on site when it did, or measures would have taken to ensure that the risk of delay was minimised. The likelihood of TW being able to make a claim for the late delivery of co-ordination drawings would have been eliminated or reduced to a minimal level of risk.
339. PMI was also in breach of its contract with RBH as it failed to take care by measures such as establishing a programme to ascertain that what it was told by AA was incorrect. The consequences are the same as those set out above.

Timing Claim

340. AA's co-ordination drawings ought to have been issued from mid-June 1987 onwards. It did not do so. Its failures to do so (and to meet in full the dates agreed on 11 August 1987) constitute breaches of its contract with RBH as there are no reasons why with the exercise of proper professional skill and care the drawings could not have been produced on time. As a result TW was able to claim and recover from RBH for late drawings.
341. WGI was not in breach of its obligations to RBH. It was not responsible for seeing that AA produced its drawings to a programme or otherwise on time. In any event WGI did everything reasonably possible to urge AA to produce its co-ordination drawings and requirements on time for the purposes of co-ordinating the overall design. Even if WGI had done more it would have not made any real difference to AA's performance.
342. PMI was in breach of its obligation under its retainer to oversee the preparation of AA's design programme and AA's administration of its part of the construction contract and that but for such a breach AA's drawings would have reached TW in time and TW would not have made claims and been granted extensions of time and recovered loss and expense and other sums from RBH.

Quality of Drawings

343. AA was in breach of its contract with RBH in that it did not take sufficient care in the preparation of its drawings, both mechanical and electrical, with the result that they were not clear enough for TW to use them, with other relevant information, to prepare installation drawings as necessary in order to install the works. There were an inordinate number of queries and clashes, occasioned by AA's failure properly to co-ordinate its single service drawings and to issue co-ordinated drawings based on them which were properly dimensioned (e.g. by the use of a 300m grid) to show the precise locations of services where that was needed. The drawings did not show detailed sections at important areas, such as corridor intersections, electrical cupboards or service risers. These deficiencies were not overcome or were increased by a lack of notes, by the lack sufficient of large scale in congested areas; and the absence of (or errors in) draughting conventions. Had AA performed its contract properly TW would not have made claims and been granted extensions of time and recovered loss and expense and other sums from RBH.

Hydrotite

344. WGI was in breach of its contract with RBH when it was asked to provide a final report and recommendation in that it should have realised that its preferred solution might cause delay or disruption (or both) and thus render RBH liable to TW under either clauses 13 or clause 26 of the JCT Conditions (or both) for more than the estimated direct costs of £75,000. It failed to obtain the correct information so its advice to RBH was therefore misleading and not given with due care.
345. PMI was in breach of its contract with RBH as it ought to have advised RBH that TW was liable but that an instruction to lay hydrotite might lead to TW being delayed and disrupted so that the cost to RBH might be greater than the estimate of direct costs of around £75,000. It ought to have required WGI to consider and advise on the effect of an instruction in terms of delay and disruption. Had it done so SI 6 would not have been issued.

Causation

346. RBH is entitled to recover from AA in respect of the drawings claim the consequences in terms of delay and disruption on the basis of WGI's extensions of time.
347. RBH is entitled to recover from PMI in respect of the late drawings claim the consequences in terms of delay and disruption on the basis of WGI's extensions of time.
348. RBH is entitled to recover from WGI and PMI on the basis of the first extension of time granted by WGI for SI 6.