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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 Trust v. Hammond & Others [1999] EWHC Technology 187 (9th December, 1999)
URL: http://www.bailii.org/ew/cases/EWHC/TCC/1999/187.html
Cite as: [1999] EWHC Technology 187

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Royal Brompton Hospital National Health Trust v. Hammond & Others [1999] EWHC Technology 187 (9th December, 1999)

In the High Court of Justice Technology and Construction Court
Before: His Honour Judge Hicks QC

Between

	The Royal Brompton Hospital National Health Trust	Claimant
	- and -
	Frederick Alexander Hammond	First Defendant
	- and -
	John Richard Lerche	Second Defendant
	- and -
	Anthony Robert Harris	Third Defendant
	- and -
	Alan Massey	Fourth Defendant
	- and -
	Alfred George Hepden	Fifth Defendant
	- and -
	Sylvian Reinhold	Sixth Defendant
	- and -
	Brian Ernest Teale	Seventh Defendant
	- and -
	Watkins Gray International (UK)	Eighth Defendant
	- and -
	Austen Associates (a firm)	Ninth Defendant
	- and -
	North, Neighbour and Nicholson	Tenth Defendant
	- and -
	Clarke Nicholls & Marcel (a firm)	Eleventh Defendant
	- and -
	Arlington Project Management Limited	Twelfth Defendant
	- and -
	Project Management International Limited	Thirteenth Defendant
	- and -
	Ivor Gordon Berresford	Fourteenth Defendant
	- and -
	Keith Pegden Smith	Fifteenth Defendant
	- and -
	Austen Associates Limited	Sixteenth Defendant

--------------------------------------------------------------

Case number: 1993 ORB 46
Date of Judgment: 9 December 1999

Antony Edwards-Stuart QC and Mark Cannon for the Claimant (solicitors: Masons)
Andrew Bartlett QC and Jane Davies for the Ninth and Sixteenth Defendants (solicitors: Berrymans Lace Mawer)

1. Consulting engineers. Obligation to provide co-ordination drawings. Whether affected by employers' obligations to provide corresponding information to main contractors.

2. The text of the judgment approved by His Honour Judge John Hicks QC is as follows.

JUDGMENT
Introduction

1. I need not repeat the factual background to this action, which I have set out in three interlocutory judgments, except to say that it concerns major works to the Royal Brompton Hospital carried out for the Claimant by contractors, the Defendants being various members of the Claimant's professional team.

2. A twelve-day trial was fixed for 1 November 1999 of three issues, issue 1 having nine parts, (a) to (i), issue 2 six, (i) to (vi) and issue 3 one. In the event there was a dispute as to the scope of issue 3, which was argued on 1 November and as to which I gave a reasoned ruling on that date which resulted in the division of that issue into two, numbers 3 and 4.

3. On 2 November all nine parts of issue 1, parts (i) to (v) of issue 2 and the revised issue 3 were settled. I heard submissions on issue 2(vi) and reserved judgment, gave directions for the trial of the new issue 4 and dealt with costs applications arising out of the issues so far disposed of.

4. On 4 November I received written submissions and gave judgment on issue 4.

5. What remains is my reserved judgment on issue 2(vi), which follows.

The issue

6. Issue 2(vi) arises between the Claimant and the ninth and sixteenth Defendants ("AA"), the consulting mechanical and electrical engineers. It is worded as follows:

3. Subject to any defences relied upon 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 paragraphs 39K(a) to (c) of AA's Amended Defence correct?

7. That requires some preliminary explanation. The details must await examination of the relevant contractual terms and pleadings, but there is no dispute that part of AA's responsibility under its retainer by the Claimant was to provide co-ordination drawings showing the relationship between pipes, wires, conduits and other installations serving different systems where they came into close proximity or might interfere with each other. (The obligation to supply builders' work information is not alleged to have been broken, and accordingly drops out of the picture.) The main contract provided for contract drawings to be signed as part of the contract documents, but clause 5.4 required the architect, as the Claimant's agent, to provide further drawings and details as necessary.

8. It was apparent from Mr Edwards-Stuart's written opening that the Claimant was not contending that the word "ensure" imported a warranty. His submission was that AA was obliged to exercise reasonable care and skill to ensure compliance with clause 5.4.

9. Nevertheless the sense of the words "so as to ensure that the Claimant complied" seemed to me to require some further clarification. They invited, first, the question "compliance in what respect?" Secondly there was an issue how far they had implications for the relief obtainable for failure to comply. These matters were discussed and clarified in the course of argument. I suggested three possible ways, not mutually exclusive, in which the words might be interpreted and neither party suggested any others. The three were:

(1) As requiring compliance in the content of the co-ordination drawings.
(2) As requiring compliance in the time at which they were to be provided.
(3) As showing that it was in the contemplation of the parties that if they were not provided timeously the Claimants would suffer damage in the form of liabilities to the contractor for breach of clause 5.4.

10. It seemed from an exchange during Mr Edwards-Stuart's opening, and was confirmed as the result of some dialogue during Mr Bartlett's submissions, that the Claimant was not advancing any case based on sense (1). It was accepted as common ground that as regards the content and form of the co-ordination drawings AA's obligations are "exhaustively defined in [their] retainer", in Mr Bartlett's words, and that the Claimant is not suggesting that "clause 5.4 in any way adds to [them]", in Mr Edwards-Stuart's.

11. Senses (2) and (3) remained, but later exchanges significantly narrowed the area of dispute. Mr Bartlett accepted, as I understand him, and for the reasons appearing in paragraph 27 below I would in any event hold, that the co-ordination drawings should be provided in time to enable the contractor to prepare his installation drawings and thus to carry out and complete the works in accordance with the contract programme, and he also accepted that it was in the contemplation of the parties that failure on AA's part to perform its obligations in that regard would involve the Claimant in damage, including liabilities to the contractor. His quarrel was with any specific link, in either of those respects, to clause 5.4.

12. That, therefore, is what remains of the issue. I raised the question with the parties, when that stage had been reached, whether it made any difference, in the result, whether AA's obligations as defined above were expressed by reference to clause 5.4 or not. I think that Mr Edwards-Stuart was inclined to accept that it did not, but in the absence of any formal consent I must decide the issue as it stands after the clarifications described above.

13. I have so far confined my attention to the first question in the issue as framed. The second question refers to the Amended Defence, but in fact the relevant sub-paragraphs amount to no more than simple denials of the obligation postulated in the first.

The contractual terms

14. AA's retainer was contained in an agreement in writing dated 18 July 1984. It provided by clause 2(A) that with exceptions irrelevant to the issue before me AA should provide in relation to the relevant contract works the services to be provided by consulting mechanical and electrical services engineers specified in a particular model form, "Form D", as amended by certain government documents, including a Health Notice HN(78)6 with a "Supplementary Annexure" to Form D. Clause 3(B) of the retainer provided for the payment of fees for various particular services, with formulae for their calculation. Item (iv) was "co-ordination of engineering services and provision of builders' work information (as defined in clause 1 of HN(78)6)".

15. In Form D clause 2C(v), as amended, provided that the duties to be performed by consulting engineers included "issuing instructions to the contractors as necessary to enable them to prepare their installation drawings".

16. In HN(78)6 paragraphs 5 and 10 provide as follows:

5. Authorities are strongly recommended to require also the pre-tender Co-ordination of Engineering Services and the provision of Builders' Work Information by Consulting Engineers as set out in the Supplementary Annexure as it is believed that this will enable the overall project cost to be reduced. Although Appendix A to the Supplementary Annexure defines the scope of each service separately, the percentage fee scale agreed covers both. It is therefore implicit to the Supplementary Annexure that the combined service be provided.
10. Tender documents should also be reviewed to ensure that contractors and sub-contractors are fully aware that the Co-ordination of Engineering Services and the provision of Builders' Work Information, which previously has been carried out by the nominated sub-contractor, is being carried out by the Consulting Engineer. It should be made clear to tenderers that they are not required to allow for the provision of these services in their prices except as defined in Clause 3(d) of Appendix A to the Supplementary Annexure [which concerns installation drawings].

17. In the Supplementary Annexure section 1 relates to the co-ordination of engineering services and the provision of builders' work information. Clause 1.1 provides that the consulting engineer shall, if so requested by the client, undertake responsibility for (inter alia) co-ordination of engineering services designed by him, and by clause 1.2(c) he shall, in fulfilment of this responsibility, (inter alia) prepare co-ordination drawings. It is common ground that AA was so requested. The fee for the additional duties under section 1 was 3% of the cost of works. Appendix A to the Supplementary Annexure contains definitions, including definitions of "co-ordination", "co-ordination drawings" and "installation drawings". The definition of co-ordination drawings goes into considerable detail, but for present purposes it is sufficient to note that it requires that their clarity "shall be such that the contractor .... may use them for construction purposes although it is recognised that the provision of installation drawings may be necessary". It is not in dispute that installation drawings are the contractor's responsibility.

18. The main contract was not sealed until October 1987, although it may have taken effect from March 1987. It was, however, contemplated by the parties to AA's retainer that it would be, as in the event it was, in the JCT Standard Form of Building Contract (Local Authorities Edition with Quantities). Clause 5.4 is part of that standard form and was incorporated in this instance without amendment. It can conveniently be prefaced by clauses 5.2.1 and 5.2.2:

5.2 Immediately after the execution of this Contract the Architect .... without charge to the Contractor shall provide him .... with:
5.2.1 one copy .... of the Contract Documents;
5.2.2 two further copies of the Contract Drawings; and
....
5.4 As and when from time to time may be necessary the Architect .... 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.

19. Some clauses in the mechanical and electrical engineering specification are material. They must be read against the background that they had been drafted for inclusion in a sub-contract and then, since the main contractor was in the event directly responsible for this part of the works, adapted for that purpose by the simple expedient of deleting "sub-" wherever it occurred, not always with entirely apt results.

20. Clause B1:03:08 included under the general title of "Position of plant and equipment and installation to drawings" a provision that:

4. The Contractor shall:-
....
Give due consideration to detailed co-ordination drawings where provided with the specification. No deviation from the positions indicated on the Engineer Co-ordination drawings shall be permitted unless written instruction to do so is given by the Engineer.
Provide all information and drawings to the Main Contractor and/or other Contractors to achieve complete co-ordination.

21. Clause B1:03:18 is entitled "Co-ordination of Work" and includes the following paragraphs:

5. Should any situation exist where installations [sic] components would conflict, then the Engineer shall be advised and his instruction sought as to the arrangement to be adopted.
....
The Contractor will be responsible for the production of all detailed working drawings necessary for the co-ordination and installation progress of the specified works. This shall include the production of detailed drawings of all builder's work requirements.

Discussion - AA's retainer

22. I find it helpful to arrange my consideration of the issues in the same two parts as Mr Bartlett's submissions, and in the same order. He approached the issue first, in his own words, "on the assumption that the contractor was entitled under clause 5.4 to call for M & E co-ordination drawings" and secondly by challenging that assumption.

23. The first of those questions is essentially one of the true construction of AA's retainer in its context. The obligation to provide co-ordination drawings was not part of the core service provided for by Form D. It arose because the undertaking of that responsibility could be, and was, requested under the Supplementary Annexure. That request was made against the background that hospital authorities were "strongly recommended" by paragraph 5 of HN(78)6 to require the co-ordination of engineering services by consultants in the belief that that would enable the overall project cost to be reduced. In the light of the substantial cost in fees of adopting that course that belief made sense only on the basis that there would be a greater saving in contract prices, and that is confirmed by paragraph 10, which requires it to be made clear to tenderers that they are not to price for the provision of this work, as they would otherwise have done.

24. All those documents were incorporated in AA's retainer. It follows, in my view, that AA not only undertook this responsibility, but did so on the basis that there would be no concurrent responsibility on the part of the contractor, who would look to AA to provide the co-ordination drawings. They would be necessary, moreover, to enable the contractor to prepare his installation drawings, and would therefore be within AA's duties under clause 2C(v) of Form D. I say "look to" in the sense of a commercial expectation, without implying any direct contractual relationship between AA and the contractor, for there was to be none. If the contractor was to be able to enforce that expectation the contractual route by which he would do so would have to be by recourse to the employer.

25. In that regard it was the parties' common contemplation that the works contract would be in the relevant JCT standard form, containing clause 5.4. Was that apt to cover the provision of co-ordination drawings, if not included in the contract drawings? In my view it plainly was. The requirement of the retainer was that they were to be produced before tender. If that did not happen, as in the event it did not, then the contract drawings were to that extent incomplete and the co-ordination drawings were clearly "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".

26. Conversely it was not in the common contemplation of the parties when entering into the contract of retainer that the specification of M & E works would contain provisions placing the responsibility for co-ordination of M & E services on the contractor or sub-contractor, as Mr Bartlett contends clauses B1:03:08 and B1:03:18 of that specification do. On the contrary, paragraph 10 of HN(78)6 enjoined that such provisions be excluded.

27. The principal focus of attention in Mr Bartlett's submissions on this point was that "what is contemplated by [AA's] retainer is that the co-ordination drawings shall be prepared before tenders are invited". In the event they were not, and there may be disputes as to how that arose, but I am not required at this stage to resolve any such dispute; that they were not is simply part of the setting in which the issue before me has to be decided. Mr Bartlett's original submission was that once the prescribed date had gone AA's only temporal obligation was to use reasonable diligence. When I asked "diligence to what end?" his reply was that "you cannot sit around; you have to get on with it". In my view that is hopelessly vague and unrealistic in the context of a carefully planned and programmed major building project. 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 his 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 argument based on the existence, originally, of the pre-tender timing, and its abandonment, goes in my view simply to this question of what temporal criterion, if any, then took its place; the inclusion or exclusion of clause 5.4 then concerns rather the machinery for enforcement, and is to be determined by reference to the considerations assessed in paragraphs 23 to 26 above, which require its inclusion.

28. Subject to the effect of authority, which I have not yet considered, I would therefore answer the question discussed in this section in the Claimant's favour.

Discussion - the works contract

29. This section, as envisaged in paragraph 22 above, addresses Mr Bartlett's challenge to the assumption that the contractor was entitled under clause 5.4 to call for M & E co-ordination drawings. That means, of course, entitled as against the employer; we are no longer concerned with the true construction of AA's retainer but with the terms of the works contract.

30. Mr Bartlett contends that in the event the contractor remained responsible for co-ordination, by reason in particular of clauses B1:03:08 and B1:03:18 of the M & E specification, notwithstanding the fact that AA were to provide co-ordination drawings and the intention of the employer and AA that the specification should exclude any corresponding obligation on the contractor's part.

31. Mr Edwards-Stuart's submissions start, as I understand them, from the assumption that the procedure enjoined by clause 10 of HN(78)6 was implemented except, possibly, so far as it required alterations to the M & E specification. The contractor had therefore tendered on the basis that he was not responsible for co-ordination and that AA were going to provide co-ordination drawings, which the contractor was therefore entitled, as against the employer, to have in time to do his work properly. If, therefore, any attempt were made to enforce the specification in the sense contended for by Mr Bartlett, or to excuse failure to supply co-ordination drawings on the same ground, the contractor would have had the indefeasible answer that he had been told not to price for this work, had not done so, and was entitled to proceed on that basis.

32. These rival arguments are of course concerned solely with the existence and extent of the contractor's liability for co-ordination and the effect of that liability or its absence on his rights under clause 5.4. They do not address, and I am not in this section re-opening, the question whether clause 5.4 itself is aptly worded to include the provision of co-ordination drawings, which I have held in paragraph 25 above it is.

33. There are difficulties in assessing the strength of either argument without knowing what information was in fact given to the contractor about AA's responsibilities and role in this regard. In the case of Mr Edwards-Stuart's submissions that is obvious, because of his basic assumption, but in my view it is equally true of Mr Bartlett's. Clause B1:03:08 is of marginal relevance, at most; the obligation not to deviate from the co-ordination drawings applies only if they have been received, and the second paragraph quoted plainly concerns co-ordination between M & E works and other trades, not co-ordination of M & E services with each other. The crux is the relationship between the two extracts from B1:03:18. If AA is, to the contractor's knowledge, obliged to respond to a proper request for instructions by providing them, including co-ordination drawings where appropriate, then either there is little or no scope for the application of the words "co-ordination and" in the second extract or "detailed working drawings" in that extract must be construed as relating to installation drawings only.

34. The agreed statement of facts prepared for the purposes of the trial of issues contains nothing to resolve this difficulty. If it were necessary for the purpose of answering the issue, as framed, to resolve the question raised in paragraph 29 above I should, perhaps, have attempted to do so despite the difficulty and, in my view, artificiality of conducting that exercise in the absence of agreement or findings on crucial issues of fact, resorting if necessary to considerations of onus or to an assumption that there are no relevant facts other than those contained in the agreed statement. But in my view it is not necessary. The conclusions which I have reached in the preceding section, subject to authority, enable me to give answers to the issues without begging the question what, as between the Claimant and the contractor, was the extent of the Claimant's obligations under clause 5.4. That question can be agreed or resolved elsewhere.

Authority

35. Mr Edwards-Stuart referred me first to the discussion in Hudson's Building and Engineering Contracts, 11th edition, of the time for delivery of drawings, information and instructions to the contractor, and in particular to the conclusion at paragraph 2-132 that "unless an act or requirement of the owners or some circumstances quite outside the architect's control make it impossible, an architect must, as a matter of business efficacy, impliedly undertake to his client that he will give instructions in time so as to comply with the express or implied requirements of the building contract". That is consistent with my own conclusion but I do not place reliance upon it, both because there is no plea here of an implied term and also because the term implied is a warranty, whereas that is not now the basis of the Claimant's case.

36. I can take the remaining two authorities together, since the first, from Keating on Building Contracts, 6th edition, summarises the relevant passage from the second. Commenting on clause 5.4 Keating says at page 559:

6. Necessary drawings and details should, it is submitted, be furnished at times which will enable the contractor to comply with his duties as to progress required by clause 23. Clause 3(4) of the 1963 form, which is materially identical to clause 5.4 of the 1980 form, was considered by Vinelott J in London Borough of Merton v Leach (1985) 32 BLR 51. He held that .... it must have been in the contemplation of the parties when making the contract that the Architect would act with reasonable diligence and would use reasonable care and skill in providing the information required by that clause.

37. The principle derived from Merton v Leach is too general to be of any assistance on the issue before me, but the first sentence of that extract accords with the conclusion reached in paragraph 27 above and I derive some support from it.

38. The authorities do not therefore inhibit the conclusions which I have independently reached, and one of them gives some support to one of those conclusions.

Conclusion

39. I therefore give an affirmative answer to the first sentence of issue 2(vi), subject to the qualifications, clarifications and explanations contained in paragraphs 8 to 11 and 34 above, and a negative answer to the second sentence.