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High Court of Justice in Northern Ireland Queen's Bench Division Decisions |
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You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Waterworth v. Vaughan Developments Limited and others [2000] NIQB 17 (7th June, 2000) URL: http://www.bailii.org/nie/cases/NIHC/QB/2000/17.html Cite as: [2000] NIQB 17 |
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1. In
early 1993 Mr Rea engaged the Morrow Charlton Partnership, architects,
(hereinafter "MCP") to design a nursing home at Cedarhurst Road, Belfast.
Initially Turven Construction Limited ("Turven") entered into negotiations with
Mr Rea with a view to constructing the home. Turven then approached the
Vaughan Engineering Group Limited in connection with the mechanical and
electrical services but they were reluctant to act as sub-contractors to
Turven. In the event Vaughan Developments Limited ("Vaughan"), of which
Vaughan Engineering Group is a part, agreed to take over responsibility for the
delivery of the project to Rea with Turven, acting as its sub-contractor,
taking on the construction and fitting out of the development. The firm of
Pyper McLarnon Partnership ("Pyper") was engaged as consulting engineers.
2. Mr
Waterworth, the plaintiff, owned land adjacent to the site of the nursing home
on which he ran a public house and restaurant. The construction work in
connection with the nursing home was carried out in a somewhat chaotic fashion.
It appears that spoil heaps were created at different points of the site,
including within the area to be built upon, and also trespassed upon Mr
Waterworth's land. Machinery was parked in a haphazard fashion and obstructed
the approach to his premises with consequent disruption of business and loss of
profits. Mr Waterworth therefore sued Vaughan and Rea in connection with his
losses. Vaughan in turn joined Turven, MCP and Pyper as third parties. BAI
Run Off Limited was joined because Turven went into liquidation and their
liabilities, or some of them, were insured by Builders' Accident Insurance.
Unfortunately it too went into liquidation and BAI Run Off Limited was
responsible for dealing with its liabilities and accordingly it was joined as a
third party by Vaughan in connection with any liability which might fall on
Turven.
3. The
building work commenced on site on 26 January 1994. The project did not get
off to a good start. The site sloped from the rear to a central plateau area
and then an escarpment dropped to the road boundary and entrance. Since
stripping of the site was not carried out completely before the setting out of
the building began, and spoil heaps remained on the site, the builder could not
set out the entire footprint of the building at the one time. He proceeded by
doing it in a piecemeal fashion. Somehow in the setting out process an error
was made, but because the entire footprint had not been set out initially this
error was not discovered until construction of a portion of the building was
already well under way. If the building had been completed on the basis of the
erroneous footprint part of the new building would have overhung the
escarpment! The best solution agreed by all was that a re-design of the
building should take place making use of the elements already in position.
4. In
the course of the hearing possible explanations were advanced for this error.
Firstly, if the distance from a given tree to a corner of the building was
measured from the plan (hereinafter referred to as "plan 94001") and the same
measurement on site was taken from an adjoining tree rather than the one used
to measure the distance on the plan it would coincide with the altered position
of the building. Mr Morrow QC, who appeared for MCP, demonstrated
this with a diagram and a two-dimensional model which showed that the building
if so measured would have followed the line which would have led it over the
escarpment. A second theory was that a dimension had been taken from plan
94001 from a roadside kerb line to a point on another corner of the building
but, because on site this dimension actually extended up the escarpment slope
it came up several metres too close to the edge of it. In other words no
allowance had been made for the fact that the distance shown on the plan was a
horizontal distance whereas on site it was the hypotenuse of a triangle and
therefore would come up short of the true point. This is so fundamental an
error that it is difficult to believe it could have happened but it has been
demonstrated mathematically as a potentially correct explanation of the cause
of the error. The slope was at an angle of approximately 31 degrees. The
actual distance between the kerb line and the intended corner of the building
was to be 21 metres. The cos of the angle is .857 which reduces 21 metres
to 17.99 metres on the horizontal. As a result the corner of the building was
actually constructed 18 metres from the kerb line instead of 21 metres,
enough eventually to cause the building to extend over the escarpment if
construction had continued accordingly to the original plan 94001.
5. In
those circumstances Mr Waterworth's claim for trespass against Rea and Vaughan
developed into a story of claim and counterclaim amongst the present parties.
On the first day of the trial however the parties reached an agreement which
settled all disputes but one. Vaughan continued to blame MCP for the problems
with setting out encountered by the builder, alleging negligence and breach of
contract by reason of their failure to provide adequate drawings for the
builder and thus causing or contributing to the errors made and the
consequential loss and the damage which followed. MCP denied liability and
maintained a claim for their fees arising from the re-design work which they
carried out after the error was discovered and is the subject of the second
action which was consolidated with the main action. As these issues could not
be resolved by agreement the action proceeded to trial with Vaughan, second
defendant, suing MCP, the third-named third party.
6. The
action was heard before me between 16-19 May 2000 inclusive. At the start of
the second day Mr Morrow QC, together with Mr Declan Morgan QC (who appeared
for Vaughan) agreed many of the outstanding matters and put before me a single
question and agreed that the answer to that question would resolve the
liability aspects of the dispute in favour of one party or the other. The
question is:
7. If
the answer is ´Yes' then Vaughan's claim fails. If the answer is
´No' then it follows that the architect was in breach of contract and
negligent. In the event of the latter circumstance arising I have been asked
to adjourn the further hearing of the case to enable the respective quantity
surveyors to discuss a possible settlement figure. The answer to this question
will also determine the outcome of the claim for additional fees by MCP.
8. I
heard evidence from Mr Cyril George ´Paddy' Andrews on behalf of Vaughan
and from Mr Alan Jones and Mr Maurice Alexander Girvan on behalf of MCP.
9. Mr
Andrews is a Chartered Architect, Associate of the Royal Institute of British
Architects, Fellow of the Chartered Institute of Arbitrators, Fellow of the
Royal Irish Architectural Institute and a past president of the Royal
Society of Ulster Architects. He retired recently after more than 40 years in
practice as an architect. In the course of the action he wrote three separate
reports, including one dealing with this dispute and was clearly familiar with
all aspects of the litigation. He took me through various RIBA publications.
The RIBA Standard Terms of Appointment, "The Blue Book", defined the work
comprised, inter alia, in stages E-L, which were incorporated by MCP and
Vaughan into the contract for architectural services. The Architects Job Book,
Vol 1, "Job Administration" deals with the duties of the architect in greater
detail. Finally, the "Plan of Work" book contains, inter alia, directions
as to the production information which is required to be given to the
contractor, including setting out details. All of these publications are in
widespread use in the contracting industry and were designed for use primarily
with the JCT family of standard form contract documentation. I am satisfied
however that they have much wider application and indicate the general
standards of care and best practice to which the profession aspires.
10. Paragraph
1.20 of Part 1 of The Blue Book specifies the architect's services at
Work Stage J as including the duty to "provide production information as
required by the building contract". The Job Book at Part F3.3, Section 2,
lists general information to be shown on the architect's drawings and schedules
including a duty that:
11. Production
information is then specified in Section F3 as requiring plans which show the
outline of buildings with the main dimensions and information required to
position the building on site. Section K5 deals specifically with setting out
and under that heading the architect is required to:
12. Provide
the contractor with all the information he needs to set out accurately
(preferably by dimensioned drawings).
13. The
Plan of Work book contains further directions to the architect to prepare
production information drawings, specifications, schedules, etc.
14. Mr
Andrews said, and I accept, that these provisions imposed upon the architect a
duty to produce drawings which were sufficient to enable the correct setting
out of the building to take place. That duty is not disputed in any event. He
said however that drawing 94001 was not a setting out plan. He pointed out
that it had been prepared by Pyper who described it as ´Proposed Site
Levels'. He said it did not contain the information required to set out the
building as it had not indicated the fixed point to be used or any dimensions
from that fixed point to any of the angles of the proposed building. Had these
been marked on the plan then MCP would have complied with their duties as
architects in respect of setting out drawings, even though this drawing had not
been prepared by them. It was accepted that it was permissible for MCP to
´borrow' this drawing from fellow professionals engaged in the same
project. It seems the drawing was produced with the aid of a Distomat system
which by utilising global positioning technology via satellite can place
relevant site features onto a scale plan with pinpoint accuracy. Again there
was no dispute about this matter.
15. Maurice
Alexander Girvan, a builder of more than 30 years standing, with widespread
experience in the contracting industry involving jobs priced between
£25,000 and £1.5 m, gave evidence on behalf of MCP. He said he had
35 employees at present and also put a considerable amount of work out to
sub-contract. He had worked with MCP recently on a hotel contract in Belfast
but had not worked with them before. He had been asked to give evidence just
the day before doing so. He had not seen plan 94001 until just prior to the
court sitting for the afternoon session on Thursday 18 May. In the witness box
he was asked if he would consider the plan and state whether in his opinion it
contained all the information he would require to set out the building. He
replied unhesitatingly that it did. He went further and explained in detail to
me, which I need not now repeat for it was not challenged, how he would go
about the task. His starting point (fixed point) was taken from two kerbed
corners of a nearby car park so as to establish the two southern-most corners
of the building and, once these were established, from which he would identify
a third fixed point of reference which he would use in double checking the work
at the end of the setting out exercise. He was emphatic that he did not need
anything further to set out and would not have expected any help from the
architect in doing so. He explained that when he would have completed the
setting out he would then carry out a series of checks to make doubly sure that
the dimensions were accurate and that the building would sit in juxtaposition
to the boundaries and other features of the site as required by the architect.
16. Under
cross-examination it was elicited that his recent working relationship with MCP
had not yet terminated because the final certificate for the job had not been
issued. It was acknowledged by him that Mr Morrow, a partner of MCP, would be
responsible for certifying his final payment. He was asked whether he would
have commenced a setting out operation before the site had been stripped
properly and whilst spoil heaps were still within the area intended to be built
upon? He said that he would not do so and would not commence any construction
work until all of the building had been set out properly and the dimensions
checked.
17. Mr
Alan Jones, Chartered Architect, Associate of the Royal Institute of
British Architects, Fellow of the Royal Society of Ulster Architects and
an Architect currently in practice with 43 years experience, then gave evidence
on behalf of MCP. He confirmed the contract was not a standard form JCT
contract, describing it as a hybrid having features of JCT 80 and JCT 81, but
customised in favour of the employer. In essence it was a design and build
contract. He had considered plan 94001 and in his opinion it satisfied the
duty placed upon the architect. He did not resile from this position in
cross-examination. Provided the drawing showed the site accurately with the
building positioned on it, then, provided it was to scale and showed relevant
fixed points, there was nothing necessary in addition to achieve accurate
setting out.
18. It
is apparent that there was a major conflict of evidence between Mr Andrews and
Mr Jones. A judge faced with such a conflict of opinions is in an
especially difficult position. Mr Andrews and Mr Jones are highly experienced
and highly regarded architects. They gave evidence honestly and impressively
and therefore my task is all the more difficult. Faced with such a conflict
the judge is not rendered powerless however. It is for him to use his own
experience and common sense to attempt to resolve it. It is not open to the
judge to say that he cannot decide and therefore the case is not proved on a
balance of probabilities, unless compelled to do so. If he can weigh the
evidence of the experts by reference to objective facts, or other opinions or
evidence which are reliable, then he must do so and determine whether that
enables him to favour the evidence of one side or the other.
19. The
conflict between these distinguished men is profound. I have considered their
evidence and would be placed in an almost impossible position if I had no other
evidence before me. I have considered the evidence of Mr Girvan with
particular care therefore, both as to what he said and his way of saying it. I
consider him to be a very experienced builder and his more than 30 years in the
business supports that proposition. When shown plan 94001 in the witness
box he was able to explain to me in detail how he would go about the setting
out exercise using it. He had no problem in doing so and demonstrated his
technique articulately and in a down to earth and honest fashion. What is most
important is that his methodology was not challenged as being incorrect in any
way. Mr Andrews was recalled to give evidence dealing with this matter.
It was his view that the angle from the car park kerb corners to the south
east corner of the building was less than optimal and could result in
inaccuracies. He had to accept however that if the setting out was done as a
whole, rather than piecemeal, and the work checked by reference to another
fixed point it could be done quite satisfactorily. He also accepted that the
angle was merely less than optimal and did not say that it rendered its use so
unreasonable as to be negligent.
20. The
recent close working relationship between Mr Girvan and MCP was admitted
readily. It may be that because Mr Morrow will have to certify his final
payment in connection with the hotel job puts a question mark over his
independence. I consider him to have been completely frank about these
connections however and I do not believe that he is motivated by any hope or
expectation of gain. I consider that his evidence establishes on the balance
of probabilities that the building could be set out quite satisfactorily from
plan 94001 and I accept that he gave his evidence fairly and impartially and I
accept it.
21. It
was the essence of Mr Andrew's case that the architect had not discharged his
duty to the client because plan 94001 did not have actually written upon it the
specific dimensions from a given fixed point. This means that the case has to
be decided on a very narrow issue. It comes down to a decision whether or not
it was the duty of the architect to measure the distance for the builder from a
specified fixed point and to enter it on the plan for him, or whether it was
sufficient to give him a plan drawn to scale, with pinpoint accuracy, with
fixed points on it which were obvious, though not marked as such, and to expect
him to perform the measuring exercise himself. Much time was taken up in
considering the precise wording of Section K5 "Setting Out" in the Job
Book. I believe it is important to remember however that these represent
guidance as to good practice. They are also the indicators of the standard and
duty of care to be fulfilled by the architect. They are not to be read as
statutes however and should be interpreted in the light of practical good sense
bearing in mind that they are used in a day-to-day business context. A reading
of Section K5 indicates that a dimensioned drawing is preferable, there is
nothing to indicate it is mandatory or that failure to provide such dimensions
renders the architect negligent.
22.
It
is also of vital importance to bear in mind that it is not the duty of the
architect to set out the building. He has no function in that regard
whatsoever. It is the exclusive responsibility of the builder. If the builder
had considered that he did not have sufficient information on the plan then no
doubt it would have sought more. It did not. Vaughan is a large firm, it was
the contractor and it was in a direct contractual relationship with MCP who had
no relationship with Turven. Both Vaughan and Turven admit plan 94001 was used
as the setting out drawing and this is evidenced by correspondence put before
me by agreement. In using the plan no suggestion was made that it was
inadequate. In my opinion MCP were entitled to assume that Vaughan and its
sub-contractors were competent and if Vaughan selected an incompetent
sub-contractor then it is it's misfortune, but responsibility for the
negligence or breach of contract of the sub-contractor vis à vis Vaughan
cannot be visited upon MCP in this instance. No doubt the misfortunes of
Vaughan have been compounded by the liquidation of both Turven and its
insurers. I consider however that plan 94001 discharged the architect's
obligations in contract and at common law and therefore I shall answer the
answer the question posed ´Yes'. In the light of the agreement between
counsel Vaughan's claim shall be dismissed, therefore, and I shall hear counsel
on the issue of costs.
23. Before
leaving the matter however I feel it is incumbent upon me to pass some comment
on the fact that a dispute of this kind had to come before this court.
Lord Denning told the story of the man who used to parade outside the
Royal Courts of Justice in the Strand carrying a placard stating
"Arbitrate, don't litigate". In the time which has elapsed since then
arbitration has, in too many instances, suffered from becoming over formalised,
protracted and excessively expensive. What should have been an attractive
alternative to litigation, often conducted by persons expert in the matters in
dispute, all too often came to resemble litigation and the expense that now
goes with it. In those circumstances the changes brought about by the
Arbitration Act 1996 and the shift to adjudication heralded by the Construction
Contracts (NI) Order 1997 are to be welcomed. Despite the difficulties found
in arbitrations on occasions however it is still clear that this particular
dispute was one which was eminently suitable for resolution by a tribunal other
than a court. No issue of law arose. It concerned exclusively a matter of
professional standards and practice. The persons best placed to determine
whether plan 94001 was an adequate drawing for the purposes of setting out
are the persons responsible for producing such drawings, ie architects. Had
this dispute been referred to an independent arbitral tribunal composed of one
or more architects I have little doubt that a ´Yes' or ´No' answer
could have been provided by it within a very short space of time, without
expert evidence and with minimal expense, delay and inconvenience. Instead of
that a trial lasting more than three days and requiring the time of two expert
witnesses and a busy builder was required to resolve it. I consider that this
is an object lesson in demonstrating the need for construction industry
professionals to give greater forethought to the appropriate form of tribunal
they ask to resolve such disputes.
24. Having
said that I wish to repeat what I said at the end of the hearing, namely, that
the counsel engaged in this case have conducted it with impeccable
professionalism and skill. It was not their responsibility in any way that
this dispute became entangled in a larger typical multi-party building contract
action. I wish to thank them for all of the assistance which they have given
me in connection with the case, for reducing the issues to be determined to a
single question and for ensuring that the matter has been disposed of with the
minimum expense possible in the circumstances.