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Royal Brompton Hospital NHS Trust v. Frederick A Hammond & Ors [2000] EWHC Technology 39 (18th December, 2000)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT

BEFORE: HIS HONOUR JUDGE RICHARD SEYMOUR Q.C.

BETWEEN:

	THE ROYAL BROMPTON HOSPITAL NATIONAL HEALTH SERVICE TRUST	Claimant
	and
	FREDERICK ALEXANDER HAMMOND JOHN RICHARD LERCHE ANTHONY ROBERT HARRIS ALAN MASSEY ALFRED GEORGE HEPDEN SYLVIAN REINHOLD BRIAN ERNEST TEALE WATKINS GRAY INTERNATIONAL (UK) AUSTEN ASSOCIATES (a firm) NORTHCROFT, NEIGHBOUR AND NICHOLSON CLARKE NICHOLLS & MARCELL (a firm) ARLINGTON PROJECT MANAGEMENT LIMITED PROJECT MANAGEMENT INTERNATIONAL LIMITED IVOR GORDON BERRESFORD KEITH PEGDEN SMITH AUSTEN ASSOCIATES LIMITED	Defendants

Case number: 1993-ORB-No. 46

Dates of Trial: 8, 9, 13, 14, 15, 16,20, 21, 27, 28 November 2000

Date of Judgment: 18 December 2000

Antony Edwards-Stuart Q.C., Mark Cannon and Seanin Gilmore for the claimants (Masons, Solicitors)
Adrian Williamson and Abdul Jinadu for the first to seventh and thirteenth defendants (Davies Arnold Cooper, Solicitors)
Marcus Taverner Q.C. and Richard Edwards for the eighth, fourteenth and fifteenth defendants (Fishburn Morgan Cole, Solicitors)

JUDGMENT

I direct that no further note or transcript be made of this judgment.

The text of the Judgment of His Honour Judge Richard Seymour Q.C. is as follows:

JUDGMENT

Introduction

By an undated agreement ("the Main Contract") in the Standard Form of Building Contract issued by the Joint Contracts Tribunal for the Standard Form of Building Contract, 1980 edition, Local Authorities With Quantities ("the Standard Form") made between the Board of Governors of The National Heart and Chest Hospitals ("the Board") and Taylor Woodrow Construction Ltd. ("Taylor Woodrow") the Board engaged Taylor Woodrow to undertake work described in the first recital to the Main Contract as:-

"construction of a six storey hospital of approximately 21,770 m2 gross floor area titled The National Heart and Chest Centre Phase 1 at Sydney Street Chelsea London".

In this judgment I shall refer to the works so described as "the Works", and to the project to undertake the Works as "the Project".

By Article 3(A) of the Main Contract it was provided, so far as is presently material, that:-

"The term "the Architect" in the Conditions shall mean the said Watkins Gray International (U. K.)…"

Watkins Gray International (U.K.), which is, or was, a partnership, is the Eighth Defendant in this action. The Fifteenth Defendant, Mr. Ivor Berresford, and the Sixteenth Defendant, Mr. Keith Smith, were, at the material time, partners in the firm. For some reason – I do not know what, and it does not matter – a decision was made on behalf of the Claimant, which is the statutory successor to the Board, to name as Defendants in these proceedings not merely Watkins Gray International (U.K.) but also Mr. Berresford and Mr. Smith. In this judgment I shall refer to the Eighth, Fifteenth and Sixteenth Defendants collectively as "WGI".

By an agreement in writing dated 8 May 1975 ("the WGI Retainer") and made between the Board and a partnership then practising under the style "Watkins Gray Woodgate International (U.K.) Group Three" the Board engaged WGI to act as architect for the purposes of the Project. By clause 2(E) of the WGI Retainer it was provided that:-

"The Architect shall provide in relation to the Development Plan for the Project and to Phase 1 of the Project the services specified in the Terms of Reference and such services shall be performed in accordance with the Terms of Reference."

The "Terms of Reference" referred to were those set out in a document entitled "Postgraduate Cardio-Thoracic Centre Architects Terms of Reference" ("the Terms of Reference"). Clause 4.50 of the Terms of Reference included:-

"Advising on the content of tenders (1).

preparing and advising on the contract and the appointment of the contractor. Supplying information to the contractor, arranging for him to take possession of the site, examining at monthly intervals his current programme. Periodic site supervision, issuing progress payment certificates and other administrative duties under the building contract…."

By clause 23.1 of the Main Contract it was provided that:-

"On the Date of Possession possession of the site shall be given to the Contractor who shall thereupon begin the Works, regularly and diligently proceed with the same and shall complete the same on or before the Completion Date."

The "Completion Date" specified for the purposes of the Main Contract was 23 July 1989. Clause 25 of the Main Contract contained the following provisions which are presently material:-

"25.2.1.1 If and whenever it becomes reasonably apparent that the progress of the Works is being or is likely to be delayed the Contractor shall forthwith give written notice to the Architect/Supervising Officer of the material circumstances including the cause or causes of the delay and identify in such notice any event which in his opinion is a Relevant Event.

"25.2.2 In respect of each and every Relevant Event identified in the notice given in accordance with clause 25.2.1.1 the Contractor shall, if practicable in such notice, or otherwise in writing as soon as possible after such notice:

.2.1 give particulars of the expected effects thereof; and

.2.2 estimate the extent, if any, of the expected delay in the completion of the Works beyond the Completion Date resulting therefrom whether or not concurrently with delay resulting from any other Relevant Event …

"25.3.1 If, in the opinion of the Architect/Supervising Officer, upon receipt of any notice, particulars and estimate under clauses 25.2.1.1 and 25.2.2,

.1.1 any of the events which are stated by the Contractor to be the cause of the delay is a Relevant Event and

.1.2 the completion of the Works is likely to be delayed thereby beyond the Completion Date

the Architect/Supervising Officer shall in writing to the Contractor give an extension of time by fixing such later date as the Completion Date as he then estimates to be fair and reasonable. The Architect/Supervising Officer shall, in fixing such new Completion Date, state:

.1.3 which of the Relevant Events he has taken into account…"

One of the functions of WGI under the terms of the WGI Retainer was, therefore, the making of assessments, in the event that the progress of the Works was delayed, of whether Taylor Woodrow was entitled to any, and, if so, to what, extension of time for completion of the Works. It is not, I think, disputed that it was a term of the WGI Retainer, to be implied as a matter of law, that WGI would perform the tasks which it undertook under the WGI Retainer with the care and skill to be expected of a reasonably competent architect, and that WGI owed the Board a duty of care to like effect – see Sutcliffe v Thackrah [1974] AC 727.

What were the "Relevant Events" for the purposes of clause 25 of the Main Contract were set out at clause 25.4. It is not necessary that I set them all out in this judgment, because it was not in dispute that each of the matters with which I am concerned in this sub-trial in respect of which WGI in fact granted an extension of time for completion of the Works to Taylor Woodrow was a "Relevant Event". However, for reasons which will appear hereafter, I should set out clause 25.4.12,which was in the following terms:-

"failure of the Employer to give in due time ingress to or egress from the site of the Works or any part thereof through or over any land, buildings, way or passage adjoining or connected with the site and in the possession and control of the Employer, in accordance with the Contract Bills and/or the Contract Drawings, after receipt by the Architect/Supervising Officer of such notice, if any, as the Contractor is required to give, or failure of the Employer to give such ingress or egress as otherwise agreed between the Architect/Supervising Officer and the Contractor."

By an agreement in writing dated 21 January 1986 ("the PMI Retainer") made between the Board and the First to Seventh Defendants inclusive, who at that time practised together in partnership under the style "Project Management International" and to whom I shall refer in this judgment collectively as "PMI", the Board engaged PMI to act as project managers for the purposes of the Project. Subsequently the practice of the partnership was incorporated under the title "Project Management International Ltd.", and that company is the Thirteenth Defendant in this action. It is not important to differentiate between the partnership and the company, and so in this judgment I shall use the term "PMI" indiscriminately to refer to whichever of the partnership or the company was the relevant body at the time of which I am writing.

The PMI Retainer incorporated "Conditions of Engagement" which included the following:-

"4.6. PMI shall advise the General Manager forthwith of any matter likely to affect the timing or cost of the Project and shall obtain the prior written approval of the General Manager Representative to any action which will commit the Client to expenditure in excess of the authorised Project cost….

"4.7. PMI shall forthwith report to the General Manager any claims made by contractors relating to the Works and give the General Manager such assistance as he may reasonably require in assessing such claims and their likely effect on the Project cost estimate.

"11. The scope of services to be provided is as follows:-

Generally to provide a project management service in relation to the design and construction stages of Phase 1 of the new National Heart and Chest Centre. This will normally be directed to the General Manager, to whom the Project Management Consultants, as leaders of the design team, will be accountable. Attendance at meetings of the Joint Planning Committee and other committees may also be required.

Specifically:-

…..

(c) In conjunction with the design team and Group Works Officer consider the design options to ensure compliance with the project brief, having particular regard to energy conservation, buildability, maintenance, running costs, fire precautions, means of escape, Public Utilities and all statutory requirements, and to ensure that the procedures laid down by the DHSS are followed.

(k) 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.

(n) Monitor the construction phases to ensure achievement of programme dates, occupancy requirements and adherence to budget.

(o) Monitor all site works to ensure that management control complies with the terms and objectives agreed.

Anticipate problems and endeavour to resolve before there is adverse effect on site.

(p) Ensure that the inspection of the finished work is achieved in accordance with an agreed sequence and that all defects are completed to enable space to be occupied in accordance with the programme…

(s) Assist the design team in settling disputes or difference with contractors as required."

It was not disputed that, as in the case of WGI, it was a term of the PMI Retainer, to be implied as a matter of law, that PMI would perform the tasks which, by the PMI Retainer, it undertook with the care and skill to be expected of a reasonably competent project manager, and that it owed to the Board a duty of care to like effect.

A publication of the Department of Health and Social Security ("DHSS") was "CAPRICODE Health Building Procedures" ("CAPRICODE"). It was submitted on behalf of the Claimant by Mr. Antony Edwards-Stuart Q.C. that the effect of clause 11(c) of the PMI Retainer was to incorporate into the contract between the Board and PMI amongst other things the provisions of CAPRICODE. In particular, Mr. Edwards-Stuart sought to rely upon the terms of paragraph 5.18 of CAPRICODE, which was in these terms:-

"Where a claim is expected or has been made the Supervising Officer may not be able to determine its validity and likely cost consequences without extensive and detailed consideration. However, as soon as a claim is expected health authorities should consider estimated cost consequences. This procedure is without prejudice to the Supervising Officer's responsibility under the building contract. Health authorities must not seek to influence the decisions of the Supervising Officer in these matters, nor to endorse those decisions either specifically or by implication. Where increased costs from claims arise an increase to the Approved Sum should be sought quickly in order that payment may be made to the contractor in accordance with the terms of the contract. It is a health authority's right and duty to require an explanation (including the reasons for the claim, the contract clauses under which it is made, any extensions of time with "relevant events", and a summary of the claim showing items of direct loss and expense and "list of matters") for any settlement the Supervising Officer proposes to make and to be satisfied (without prejudice to rights and responsibilities under the contract) that any additional expenditure to which it is committed is justified…"

At a trial in this action in November 1999 a number of preliminary issues were before the Court. Most were answered by agreement of the parties. One of the issues resolved by consent was concerned with what was called "National Heart and Chest Hospitals National Heart and Chest Centre Phase 1 Project Procedures Document" ("the Project Procedures Document"). The issue as formulated was:-

"Did the Project Procedures Document qualify the terms of PMI's retainer as alleged in paragraph 18 of PMI's Defence?"

The agreed answer was:-

"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."

The Project Procedures Document included the following:-

"3.6 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….

"5.3 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.

"5.4 The Contractor will provide detailed reports to the Architect of progress against the Master Programme not less than 3 working days before each site meeting. The Project Manager will review these reports and 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.

"5.5 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."

Another preliminary issue resolved by agreement in November 1999 was:-

"If the answer to Issue 1 (f) above is no, [as, by agreement, it was] what was PMI's obligation to advise the Board as to extensions of time and/or loss and expense?"

The agreed answer was:-

"PMI's obligation was as set out in clause 11(k) of its retainer."

Separately from the Project Procedures Document PMI had prepared a document entitled "National Heart & Chest Centre Phase 1 PMI Procedure Document Cost Control and Reporting Procedure" ("the PMI Procedure Document"). That included:-

"9.2 Construction Programme

PMI will advise the Architect on the Contractor's Master Programme and network analysis submitted in accordance with the General Conditions of Contract.

The accepted Master Programme will be the basis for monitoring the building works.

Short term detailed programmes will be provided by the Contractor and PMI will advise on these programmes, monitor progress and report delays to the Architect.

Information Issue Schedules will be issued by the Contractor. PMI will establish that these requirements are considered reasonable by members of the Design Team and will then monitor information issue.

"9.3 Construction Progress

The Contractor will submit detailed progress reports against their Master Programme for each Site Meeting after agreement with PMI.

PMI will assess the progress of the works on a monthly basis and incorporate the information within the Client's Monthly Report.

PMI will identify during the building operations potential bottlenecks or possible causes of disruption or delay and advise the Architect and all relevant members of the team to enable preventative or corrective action to be taken."

As both the Project Procedures Document and the PMI Procedure Document were post-contractual documents they cannot directly impose binding obligations upon PMI. However, they do, in my judgment, have some value as illustrating the sort of performance which it was contemplated PMI would deliver of the rather vaguely stated obligations in the PMI Retainer.

The progress of the Works was delayed. As matters turned out, WGI issued a Certificate of Practical Completion on 22 May 1990 by which it was certified that Practical Completion had been achieved on the date of the certificate. Prior to the issue of that certificate Taylor Woodrow had contended that it was entitled to extensions of time for completing the Works pursuant to the provisions of clause 25 of the Main Contract. In the period before 22 May 1990 WGI granted extensions of time as follows:-

20 July 1989: extension to 1 October 1989 on the ground that there had been a delay in giving possession to Taylor Woodrow of part of the site of the Works, namely the Chelsea Hospital for Women, to which ground I shall refer in this judgment as "the CHW Ground".

29 September 1989: extension to 8 October 1989 also on the CHW Ground.

19 October 1989: extension to 12 November 1989 on the ground that Taylor Woodrow had been delayed in the execution of the Works by an instruction given on 18 May 1989 to lay a waterproof membrane using a material called "Hydrotite" on the power-floated concrete floors so as to enable the laying of floor coverings to proceed notwithstanding that the floors had not properly dried out, to which ground I shall refer in this judgment as "the Hydrotite Ground".

2 November 1989: extension to 26 November 1989 on the ground that necessary information concerning the mechanical and electrical services installation had been provided to Taylor Woodrow late.

24 November 1989: extension to 14 January 1990 also on the Hydrotite Ground.

Following the issue of the Certificate of Practical Completion further extensions of time were granted by WGI such that in the end time was extended for completion of the Works to 22 May 1990. For the purposes of this judgment I need only notice three of the extensions of time granted after 22 May 1990, namely:-

(i) that granted on 14 August 1990 insofar as it concerned delay ascribed to instructions given in March 1990 to remove safety cabinets which had been installed on benches, in order to modify the benches, and then reinstal the safety cabinets, to which ground I shall refer in this judgment as "the Safety Cabinet Ground";

(ii) that granted on 21 February 1991 insofar as it too concerned the Safety Cabinet Ground;

(iii) that granted on 6 April 1992 insofar as it concerned delay ascribed to the time taken to commission the Works, to which I shall refer in this judgment as "the Commissioning Ground".

As matters have transpired, this sub-trial is concerned with the allegations made on behalf of the Claimant that both WGI and PMI were negligent in relation to the grant of those of the extensions of time to which I have referred which were made on the CHW Ground, the Hydrotite Ground, the Safety Cabinet Ground and the Commissioning Ground. The total extension of time granted on each of those respective grounds was:-

CHW Ground: 11 weeks
Hydrotite Ground: 12 weeks
Safety Cabinet Ground: 3 weeks
Commissioning Ground: 20 weeks, of which 12 weeks were concurrent with other extensions.

The Claimant's case is that no extension at all should have been granted on the CHW Ground or on the Safety Cabinet Ground, while the grants on the Hydrotite Ground and on the Commissioning Ground were of excessive length such that no reasonably competent architect or project manager could possibly have considered extensions of time of such length justified. The Claimant's case is that the maximum proper extension on the Hydrotite Ground was 2 weeks, while the maximum proper extension on the Commissioning Ground was 3 weeks.

The Pleadings

A recurrent theme during the submissions made on behalf of PMI and WGI, both in the opening of their respective cases by Mr. Adrian Williamson, who appeared for PMI, and Mr. Marcus Taverner Q.C., who appeared for WGI, and during the respective closing submissions, was that particular allegations advanced on behalf of the Claimant by Mr. Edwards-Stuart in his written submissions were not covered by the Claimant's pleaded case. In particular, it was submitted that there was no pleaded allegation that either PMI or WGI had been negligent in relation to the length of the extension of time granted on the Commissioning Ground, and Mr. Taverner submitted that the factual basis upon which it was sought in closing the Claimant's case to support the allegations in relation to the first grant of an extension of time on the Hydrotite Ground had not been pleaded. It is therefore necessary to consider how the case against each of PMI and WGI in respect of the grant of extensions of time was put in the Re-Amended Statement of Claim.
The allegations of negligence and breach of contract against WGI in relation to the grant of extensions of time were pleaded at paragraph 108 of the Re-Amended Statement of Claim in the following terms:-
"In granting each of the extensions of time set out above, WGI was in breach of the terms of the WGI retainer set out in paragraphs 13.4.2, 13.4.7, 13.4.9 and/or 14.1 and/or negligent.

PARTICULARS OF BREACH OF DUTY

108.1 Failing to determine the critical path of Taylor Woodrow's works when considering applications for extensions of time, or, if and to the extent that WGI was not competent to do so, failing to advise that the critical path be determined by someone competent to do so.

108.2 If and to the extent that WGI did try to determine the critical path when considering Taylor Woodrow's applications for extensions of time, failing to exercise reasonable skill and care in doing so, and, in particular:

108.2.1 failing to conclude that the works to be carried out in the CHW area were not on the critical path; and

108.2.2 failing to conclude that the works caused by alterations to safety cabinets were not on the critical path.

108.3 Failing to consider adequately or at all the implications of the delays reported by Taylor Woodrow up to the 1^st January 1989 when considering Taylor Woodrow's applications for extensions of time in relation to the late release of the CHW area. WGI should have concluded that any such delays prevented the late release of the CHW area from causing critical delay.

108.4 Failing to determine either at all and/or with reasonable accuracy Taylor Woodrow's actual progress against its programme and/or the reasons for delay against that programme when considering Taylor Woodrow's applications for extensions of time. Had WGI done so, it should have concluded that the matters in respect of which Taylor Woodrow was claiming extensions of time had not caused critical delay.

108.5 Failing to attach any and/or adequate weight to the acts and/or omissions of Taylor Woodrow, Taymech and/or their sub-contractors as set out in Schedule 1 to the Statement of Claim. WGI should have concluded that those matters had caused and/or materially contributed to the delay in respect of which Taylor Woodrow was seeking extensions of time.

108.6 To the extent that WGI was unaware of the matters set out in Schedule 1 to the Statement of Claim when considering Taylor Woodrow's applications for extensions of time, failing to exercise reasonable skill, care and/or diligence in inspecting and/or supervising the works pursuant to the terms of the WGI retainer set out in paragraphs 13.4.7 and/or 13.4.9 above and/or in discharging its administrative duties under the main contract.

108.7 When considering Taylor Woodrow's applications for extensions of time by reason of the instruction to lay Hydrotite, failing to establish and/or consider the additional delay to the works during the period between the giving of that instruction and the completion of the relevant works. WGI should have concluded that the maximum additional delay was 2 weeks

108.8 Issuing and/or purporting to issue the certificates dated 21^st February 1991 and/or the 6^th April 1992 when WGI knew or should have known that it had no power to do so, as set out in paragraph 107.8 above.

108.9 WGI should have concluded that Taylor Woodrow was entitled to no extensions of time as set out in paragraphs 81.3, 83, 89.1,91.3,93,95, 96.4, 98 and/or 99.2 above, alternatively that Taylor Woodrow was only entitled to extensions of time as set out in paragraphs 89.2, 91.4 and/or 99.3 above.

108.10 In each of the respects identified in the preceding particulars and in the circumstances, failing to exercise the skill and care which a reasonably competent architect should have exercised."

The only pleaded allegation which appeared to relate to commissioning was thus that in paragraph 108.8, which in the event was not pursued. The extension of time granted, amongst other reasons, on the Commissioning Ground, was pleaded at paragraph 100 of the Re-Amended Statement of Claim, which was not referred to in list of paragraphs set out at paragraph 108.9. However, Mr. Edwards-Stuart submitted that the complaint which the Claimant wished to pursue in relation to the extension of time granted on the Commissioning Ground was covered by the general allegation pleaded at paragraph 108.4. I confess that initially I was rather doubtful as to whether it was appropriate to entertain a specific case in respect of the extension of time granted on the Commissioning Ground on the grounds that it was covered by broad general wording, but Mr. Edwards-Stuart also showed me Amended Further and Better Particulars of the Statement of Claim served pursuant to a Request by WGI which, in response to a request under paragraphs 108, 111 and 112 in the following terms:-

"In respect of each extension of time granted, provide full particulars of the following:-

(a) the term which it is alleged was breached by WGI;

(b) the alleged breach of such term upon which reliance is to be placed at trial;

(c) the consequence of such breach in terms of the extension granted and/or any other consequence alleged;

(d) the loss alleged as a result of such breach and how the same arose, providing particulars of all facts and matters to be relied upon in establishing causation.",

did, at paragraph 51.5, specifically refer to the extension granted on the Commissioning Ground, albeit that it did not in terms elaborate the complaint which, in closing the Claimant's case, Mr. Edwards-Stuart sought to advance. An aspect of this case which has troubled me greatly is the fact that, despite the length of the Claimant's voluminous pleadings, many of the allegations against the various Defendants are pleaded in very general terms. This is not the first time in my involvement in this action that it has been submitted on behalf of one of the Defendants that a particular case which had been explained to me as being the case which the Claimant wished to put forward was not covered by the Re-Amended Statement of Claim. I comment further on this question later in this judgment, but so far as Mr. Taverner's objections to the case which the Claimant wished to put forward in relation to the Commissioning Ground is concerned, I think that the acid test of whether I should entertain it or not is whether WGI had been given notice of it sufficient to enable it to prepare an effective defence. As expert evidence was prepared on behalf of WGI dealing with the question of the extension of time granted on the Commissioning Ground, it seems to me that WGI was given adequate notice of the general nature, at least, of the case which it would have to meet. On the other hand, the inability or unwillingness of the Claimant to state in plain language the precise nature of its complaint in relation to some particular matter, does prompt a degree of caution in approaching the case on which, at the end of the sub-trial, the Claimant ultimately decided to pin its colours.

So far a Mr. Taverner's other pleading point is concerned, I think that he is correct in submitting that that uposn which Mr. Edwards-Stuart ultimately sought to rely in relation to the first grant of an extension of time on the Hydrotite Ground had not been foreshadowed by the Claimant's pleadings. What I consider Mr. Edwards-Stuart was seeking to do was to refine the Claimant's case in the light of a re-evaluation of the documentary evidence prompted by how the cross-examination of the various witnesses proceeded. Obviously there is a point beyond which such a refinement cannot go without causing prejudice to the opposite party. However, I do not feel that in this sub-trial the boundaries of what is legitimate were exceeded.
The case against PMI as pleaded in the Re-Amended Statement of Claim at paragraph 110, omitting allegations which are no longer pursued, was as follows:-
"In advising the Board and/or in assisting and/or liaising with WGI in relation to the extensions of time set out above, PMI was in breach of the terms of the PMI retainer set out in paragraphs 9.1, 9.2, 9.3, 9.4, 9.5, 9.6 (and in particular subparagraphs (j), (k), (l), (n), (o) and/or (s) and/or 10.1 above and/or negligent.

PARTICULARS OF BREACH OF DUTY

110.1 Failing to determine the critical path of Taylor Woodrow's works when considering applications for extensions of time and/or to require WGI to do so.

110.2 If and to the extent that PMI did try to determine the critical path when considering Taylor Woodrow's applications for extensions of time, failing to exercise reasonable skill and care in doing so, in particular:

110.2.1 failing to conclude that the works to be carried out in the CHW area were not on the critical path and so advising WGI; and

110.2.2 failing to conclude that the works caused by alterations to safety cabinets were not on the critical path and so advising WGI.

110.3 Failing to consider adequately or at all the implications of the delays reported by Taylor Woodrow up to the 1^st January 1989 when considering Taylor Woodrow's applications for extensions of time in relation to the late release of the CHW area. PMI should have advised WGI and/or the Board that such delays prevented the late release of the CHW area from causing any critical delay.

110.4 Failing to determine either at all and/or with reasonable accuracy Taylor Woodrow's actual progress against its programme and/or the reasons for delay against that programme when considering Taylor Woodrow's applications for extensions of time. Had PMI done so, it should have advised WGI and/or the Board that the matters in respect of which Taylor Woodrow was claiming extensions of time had not caused critical delay.

110.5 Failing to attach any and/or any adequate weight to the acts and/or omissions of Taylor Woodrow, Taymech and/or their sub-contractors as set out in Schedule 1 to the Statement of Claim. PMI should have concluded and advised WGI and/or the Board that those matters had caused and/or materially contributed to the delay in respect of which Taylor Woodrow was seeking extensions of time.

110.6 To the extent that PMI was unaware of the matters set out in Schedule 1 to the Statement of Claim when considering Taylor Woodrow's applications for extensions of time, failing to exercise reasonable skill, care and/or diligence in monitoring the construction phases and/or site works.

110.7 When considering Taylor Woodrow's applications for extensions of time by reason of the instruction to lay Hydrotite, failing to establish and/or consider the additional delay to the works during the period between the giving of that instruction and the completion of the relevant works. PMI should have concluded and advised WGI and/or the Board that the maximum additional delay was 2 weeks.

110.10 PMI should have concluded that Taylor Woodrow was entitled to no extensions of time as set out in paragraphs 81.3, 83, 89.1, 91.3, 93, 95, 96.4, 98 and/or 99.2 above, alternatively that Taylor Woodrow was only entitled to extensions of time as set out in paragraphs 89.2, 91.4 and/or 99.3 above and so advised WGI and the Board.

110.11 In each of the respects identified in the preceding particulars and in the circumstances, failing to exercise the skill and care which a reasonably competent project manager should have exercised."

These allegations are, of course, in terms very similar to those which I have quoted above made against WGI in relation to the grant of extensions of time. They are just as vague and general. However, as in the case of WGI, PMI in fact prepared to defend itself against allegations relating to the grant of the extension of time on the Commissioning Ground, amongst other ways, by instructing an expert to consider what substance there might be in any complaint about the grant of an extension of time on the Commissioning Ground. Consequently, in my judgment, there is no legitimate reason why I should not consider on their merits the allegations which the Claimant desires to pursue against PMI.
A pleading point of a rather different kind which Mr. Taverner took arose out of the way in which paragraph 59.4 of the Re-Amended Statement of Claim was pleaded. The material terms of that paragraph were:-
"The critical delays set out in the preceding subparagraph totalled 239 days (34 weeks, 1 day) and:…

59.4.3 could reasonably be argued to have been caused and/or contributed to by the matters set out in paragraphs 54 to 58 above inclusive, so that

59.4.4 Taylor Woodrow was entitled to the extensions of time set out in paragraph 59.2 above,…"

The matters set out at paragraphs 54 to 58 inclusive were alleged defaults on the part of Messrs. Austen Associates ("AA"), the mechanical and electrical engineering services consultants engaged for the purposes of the Project, in the provision of information to Taylor Woodrow which Taylor Woodrow needed to be able to undertake the Works. The extensions of time set out in paragraph 59.2 totalled 9 weeks and had been granted on account of the alleged defaults of AA. Originally WGI in its Defence had put that plea in issue. However, by a letter written on 3^rd November 2000, during the course of the sub-trial, WGI had, through its solicitors, Messrs. Fishburn Morgan Cole, given notice pursuant CPR 14.1 that WGI admitted paragraphs 59.4.3, 59.4.4, 59.4.5 and 59.4.6 of the Re-Amended Statement of Claim. The consequence, so Mr. Taverner submitted, was that it was no longer in issue between WGI and the Claimant that a reasonably competent architect could properly have considered that Taylor Woodrow was entitled to extensions of time for the completion of the Works which totalled 34 weeks and 1 day. What followed from that, said Mr. Taverner, was that on no view could WGI be held to be liable to the Claimant for the consequences of granting extensions of time save to the extent that the extensions granted exceeded 34 weeks and 1 day. Mr. Edwards-Stuart sought to characterise the late admission on behalf of WGI as a device and submitted that, on that account it should not be countenanced by the Court. The late admission was, undoubtedly, in my view, motivated by tactical considerations, but that can be said of a number of things which have happened during this sub-trial, not the least of which are the ways in which the case of the Claimant has been refined over time. The mere fact that the late admissions on behalf of WGI were prompted by a realisation that advantage might be obtained by making them would not, in my judgment, mean that I had some discretion to disregard them or ought to ignore the fact that they had been made. Why, it seems to me, WGI does not obtain from the making of the admissions the advantage for which Mr. Taverner contended, is that the effect of the plea is not what he submitted it was. In my judgment, to have the effect for which Mr. Taverner contended, the plea would have to have been that the critical delays of 239 days could reasonably be argued to have been caused by the matters set out in paragraphs 54 to 58 inclusive. The plea in fact was that the matters referred to could reasonably be argued to have been caused or contributed to bythe alleged defaults of AA. Since the extensions of time granted only amounted to 9 weeks in total I think that it is impossible to interpret paragraph 59.4 in the way for which Mr. Taverner contended.

The evidence

The manner in which the Re-Amended Statement of Claim has been drafted, that is to say, at inordinate length, with a large number of allegations covering every conceivable criticism which could possibly be imagined as a result of a comprehensive trawl through the vast documentation which the Project generated, but with the criticisms stated in legal language which is at the same time all-embracing and imprecise in its identification of what is the real subject matter of any particular complaint, suggests that the pleaded allegations were the product of an examination of the available documentation by someone whose qualifications were as a lawyer, rather than the result of a dispassionate and objective consideration of the performance of WGI by an independent architect and of a similar consideration of the performance of PMI by an independent project manager. This impression was reinforced when the evidence was called on behalf of the Claimant. Somewhat remarkably, only one witness of fact was called at the sub-trial. She was Miss Frances Alderson, a solicitor and a partner in the firm of Messrs. Masons, which acts on behalf of the Claimant in this action. Miss Alderson was called as a witness on behalf of the Claimant and I shall return to her evidence at the appropriate point in this judgment. The other witnesses called on behalf of the Claimant were Mr. Roger Gibson, who is an expert in programming, Mr. Owen Luder, who is a very eminent architect, being, amongst other things, twice President of the Royal Institute of British Architects, and Mr. David Adams, a project manager. Although, from his evidence, it appears that Mr. Gibson has been involved in this matter on behalf of the Claimant for a considerable period, the same cannot be said of either Mr. Luder or Mr. Adams. Mr. Luder's evidence was that he was originally instructed on behalf of the Claimant some time ago, but he did not do any significant work until the beginning of the year 2000, and he did not start to form any conclusions until he started to prepare his report for the purposes of this sub-trial in about May or June of this year. Mr. Adams' evidence was that he was first instructed as a potential expert witness on behalf of the Claimant in about June 2000. Thus it is obvious that if, which I doubt, the allegations against WGI and PMI pleaded in the Re-Amended Statement of Claim were formulated with the benefit of any assistance from either an architect or a project manager, the architect was not Mr. Luder and the project manager was not Mr. Adams. Each of Mr. Luder and Mr. Adams was put in the unhappy position of being invited to give evidence to support cases against WGI and PMI, respectively, which they had had no hand in formulating. Moreover, each of them was asked to prepare an expert report in a short space of time in relation to factually complicated issues, which required, if the task was to be performed properly, the consideration of a great deal of material and the opportunity for mature reflection before reaching any conclusion on such a sensitive question as whether a fellow member of one's profession had been guilty of professional negligence.
I shall come shortly to state my conclusions concerning the various witnesses, other than Miss Alderson, who were called to give evidence before me, they being, in addition to the witnesses whom I have already mentioned called on behalf of the Claimant, Mr. Stuart Hendy, an architect called on behalf of WGI, and Mr. Michael Coleman, a project manager called on behalf of PMI. Both Mr. Hendy and Mr. Coleman were called as experts in their respective disciplines and neither had had any personal involvement in the Project during the carrying out of the Works. As I have already indicated, no witness was called on behalf of either WGI or PMI who was actually involved in the Project during the execution of the Works. Before stating my conclusions concerning the witnesses who gave evidence in court, however, I should record the fact that, initially at least, Mr. Edwards-Stuart sought to rely also upon a number of statements which had been served on behalf of the Claimant under the provisions of Civil Evidence Act 1995. These statements took the form, principally, of letters which had been written by a Mr. Agate, who had been Taylor Woodrow's Project Manager for the purposes of the Works, to various sub-contractors which had been engaged by Taylor Woodrow to undertake particular parts of the Works. In those letters some complaint had been made about lack of performance on the part of the sub-contractor in relation to the part of the Works sub-contracted to it. The purpose for which this evidence was put in was to support what at first had been the primary case of the Claimant, namely that the sole responsibility for all the delays to completion of the Works lay with Taylor Woodrow. The evidence had evidently been assembled by going through the files of correspondence between Taylor Woodrow and its sub-contractors and extracting anything in which Taylor Woodrow had criticised the progress being made by a sub-contractor. The attribution of precise alleged consequences to any particular alleged lack of progress by a sub-contractor was, by and large, absent. Nonetheless, the fruits of the exercise were set out in Schedule 1 to the Re-Amended Statement of Claim. In his closing submissions Mr. Edwards-Stuart more or less abandoned any reliance upon the Civil Evidence Act notices, saying that they were simply a part of the background. I think that this was a wise decision. The Civil Evidence Act notices had been met with, as it were, counter Civil Evidence Act notices served on behalf of WGI in the form of witness statements prepared on behalf of Taylor Woodrow in anticipation of a hearing of arbitration proceedings which it had commenced against the Board arising out of the circumstances in which Taylor Woodrow alleged that the Works had been undertaken. The witness statements were from the authors of the various letters served on behalf of the Claimant under cover of its Civil Evidence Act notices, and purported to give some explanation of the writing of the letters as representing not an indication of the reality of the position at the date each, respectively, was written, but rather an emphatic way of pressing the particular sub-contractor to catch up lost time. Faced with, on the one hand, letters which read literally provided some evidence of culpable delay on the part of those for whom Taylor Woodrow was contractually responsible so far as the Board was concerned and, on the other, material which, if accepted, deprived the letters of any evidential value, it would have been impossible for me to reach any conclusion as to where the truth lay without hearing the authors of the various letters cross-examined. That course was not proposed by any of the parties to the sub-trial.
It is, in my judgment, essential for an expert witness in the trial of a professional negligence action to perform what is actually a very difficult task, at least unless one is experienced in doing it, and that is to put on one side his own personal professional standards and to concentrate on the standards of the ordinarily competent member of his profession. There is a natural temptation to regard one's own standards as those which should be shared by all members of one's profession, but as those who are approached to act as expert witnesses are often approached just because they are especially prominent members of their profession or particularly experienced it is a temptation which must be resisted. Unfortunately, it became clear during the evidence of both Mr. Luder and Mr. Adams that in talking of what a reasonably competent architect or a reasonably competent project manager, as the case might be, would or would not do, each was actually speaking of what he personally would or would not do. Each in his report prepared for the purposes of this sub-trial gave an indication that this might turn out the position. Mr. Luder at paragraph 4.57 of his report spoke of what he would have done in respect of a particular extension of time had he been in the position of WGI. While Mr. Adams was perhaps a little more circumspect, something of the flavour of his approach is, in my judgment, revealed by paragraph 2.21 of his report:-
"However, although there are 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. They were such as to allow us to distinguish between good, adequate or inadequate performance. The 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. The inadequate would have fallen below the level whilst the good performance was one which exceeded the minimum requirements of the retainer in protecting the Client's interests and adding some value to the project."

Mr. Adams clearly, and in my view rightly, regarded himself as a project manager who gave a good performance. However, in my judgment he was quite unable to appreciate by what degree a project manager who was in fact perfectly competent might fall below his own high standards. This became apparent in a series of answers in which he described a reasonably competent project manager adopting an extremely interventionist role in dealing with an architect and challenging the architect's methodology and reasoning in relation to the grant of extensions of time under a construction contract, despite his making an agreement with the project management experts for the other parties that:-

"The parties agreed that the Project Manager is under no obligation in the Retainer to offer advice to the Supervising Officer in relation to determining extensions of time. However, if he becomes aware of the potential of the S.O. granting an extension of time which the Project Manager considers unreasonable then he should express his views to the S.O. and ask the S.O. for the logic of how he came to that conclusion and offer any appropriate information or advice but not attempt to interfere with either the decision or the process. The S.O. may choose to decline an offer of advice or ignore any advice given."

While it seems to me that even going as far as that agreement appears to contemplate would run the risk of amounting to illegitimate interference with the architect in the performance of his function of reaching a decision which is fair and reasonable as between the building owner and the contractor, in his oral evidence Mr. Adams seemed to be going almost as far as suggesting that if the project manager did not agree with some extension of time which the architect proposed to grant then it was the duty of the project manager to argue with the architect and to seek to persuade the architect to the project manager's point of view.
Another feature of the evidence of both Mr. Luder and Mr. Adams was that it was obvious that neither of them was fully on top of the documentary material relevant to the opinions about the professional performance of WGI and PMI, respectively, which they expressed. A striking example of this concerned the question whether Taylor Woodrow had ever formally sought an extension of time on the Safety Cabinet Ground. Both Mr. Luder, at paragraph 4.64 of his report, and Mr. Adams, at paragraph 7.11.4 of his report, stated that Taylor Woodrow had never made an application, or at least a proper application, for an extension of time on the Safety Cabinet Ground. This was totally incorrect, and was shown during the respective cross-examination of each to be incorrect. It is curious that each made the same mistake. Whatever the explanation, and neither offered one beyond that he must have overlooked the relevant documents, it indicates, as it seems to me, either that both were inadequately instructed or that each had quite insufficient time to undertake a proper investigation of the material facts and to reach an informed and objective conclusion. Mr. Luder also, wrongly, recorded at paragraph 4.73 of his report that Taylor Woodrow had not made a formal application for an extension of time on the Commissioning Ground.
There are much more worrying features in relation to the evidence of Mr. Luder than those to which I have so far referred. The most fundamental concerns the making of assumptions for the purposes of his report. Throughout the section of his report in which he considers the various extensions of time which are the subject of this sub-trial Mr. Luder set out the assumptions which he had been instructed to make and expressed his opinions as resulting from those assumptions. An example was at paragraph 4.35 in relation to the extensions of time granted on the CHW Ground:-
"(4) I am to assume that in fact no critical delay occurred over the relevant period ( save, perhaps for all or part of the total delay of 7 days between 22^nd October 1988 and 23^rd January 1989).

"(5) I am to assume that the works on the CHW were not critical to the progress of the works as a whole. My understanding is that the main structure of the hospital was not on the CHW site. This must have been known by WGI.

"(6) I find it difficult to understand how any competent architect could have fixed an EOT of 11 weeks for failure to release this area."

Another example was at paragraph 4.36 in relation to the extensions of time granted on the Hydrotite Ground:-

"(4) I am to assume that in fact 21 days critical delay occurred over the relevant period.

(8) In my opinion on the assumptions I have been instructed to make the greatest EOT which could have been fixed was 21 days unless TWC produced material showing that it would otherwise have been able to accelerate…."

In each case the conclusion that no reasonably competent architect could have granted the extension which WGI in fact granted depends vitally upon the accuracy of the assumptions which Mr. Luder had been instructed to make. The assumptions in each case lead inevitably to the conclusion, so that in fact the evidence as to Mr. Luder's opinion is worthless. When the close connection between the assumptions and the conclusions was pointed out to Mr. Luder during his cross-examination by Mr. Taverner Mr. Luder sought to say that actually he had disregarded his instructions to make assumptions and either, at one point in his evidence, had himself independently verified the accuracy of the assumptions, or, at another point, that he had proceeded quite independently and reached conclusions as to the underlying facts which happened to coincide with the assumptions which he had been instructed to make. I regret that I am quite unable to accept that evidence. It seems to me to be wholly inconsistent with what Mr. Luder had written in his report about proceeding on the basis of assumptions. However, the fact that Mr. Luder, as it appears to me, sought to bolster the Claimant's case by giving inaccurate evidence fatally undermined his position as an independent expert doing his best to assist the Court.
It was not merely in relation to what he said about assumptions that it seemed to me that Mr. Luder was going beyond the proper role of an expert witness. One of the pleaded allegations against WGI and PMI was that the maximum delay which they should have concluded had been caused by the instruction to lay Hydrotite was two weeks – see paragraphs 108.7 and 110.7 of the Re-Amended Statement of Claim. As I have already pointed out, whoever made that assessment it was not Mr. Luder. Nonetheless, it fell to Mr. Luder, once he had accepted instructions to act as an expert witness in architectural matters on behalf of the Claimant, to support that pleaded case. At paragraph 4.36 (9) of his report Mr. Luder stated, baldly, that:-
"I would not regard an architect who fixed an EOT of 2-3 weeks as having fallen below the standard of reasonable competence."

Mr. Luder was invited to elaborate upon that statement in oral examination in chief. He proceeded to explain that his opinion that an extension of time of 2-3 weeks could have been justified was based upon an averaging of some, but not all, of the periods of delay which Taylor Woodrow alleged that it had suffered in particular zones on particular levels by reason of the instruction to lay Hydrotite. The exercise seemed to me to be artificial and lacking in logic. My conclusion was that it was undertaken not because Mr. Luder really thought that it was the appropriate thing to do, but because it was the best way he could think of to try and justify the pleaded case. That is not, in my judgment, the proper function of an expert witness. My impression that Mr. Luder did not in fact believe in the validity of the exercise which he had undertaken was re-inforced by the inclusion in his written report of the following at paragraph 4.36 (7):-

"It is clear that laying Hydrotite involved considerable disruption. Areas of floor had to be cleared so it could be laid and then protected. On paper an exercise can be done to show that significant delay would result. However, on the assumptions which I am instructed to make and according to TWC's reports at the time, delay was no greater than 21 days. There were always extensive areas in which Hydrotite was not being laid and in which other work could carry on."

In that passage Mr. Luder seemed to be contemplating that a reasonably competent architect might conclude on paper that significant delay could have been caused by the instruction to lay Hydrotite. Obviously, if that were a tenable view, the criticism of WGI for granting a total extension of time of 10 weeks on the Hydrotite Ground would be impossible to sustain. Once this had been pointed out to him by Mr. Taverner Mr. Luder affected to suggest that that had not been what he had meant at all. Once again, I regret to have say, I found that evidence wholly unconvincing, but the fact that it had been given further undermined, in my view, Mr. Luder's status as an independent expert witness.
Another respect in which I found Mr. Luder's evidence to be unsatisfactory concerned the strange issue whether he continued to practise as an architect. Both in his written report and in oral examination in chief Mr. Luder maintained that he continued to practise as an architect. The relevance of the point was that if he had ceased at some date significantly in the past to practise as an architect, it could be said of his evidence that it was not that of someone who had experience of the practices of architects at the time relevant to the issues raised in this sub-trial. In fact it proved on investigation to be the case that Mr. Luder had sold his interest in his architectural practice in 1988 and since then had not practised as an architect in the ordinary sense, but rather as a consultant and professional expert witness. Mr. Luder's lack of candour about what he had been doing for the last twelve years or so I found disturbing.
For the reasons which I have set out above I feel driven to the conclusion that I cannot accept the evidence of Mr. Luder on any controversial issue. Mr. Edwards-Stuart appears to have anticipated that I might feel driven to such a conclusion, for in his written closing submissions at paragraph 15 he said:-
"In the context of the grant of EOTs, to a large extent the exercise which the architect performs is one of factual analysis. To that extent a decision is as susceptible to criticism by non-architects as well as by other architects. If the architect has made an obvious error in his assessment of the relevant facts, the Court may well not need any assistance from an expert architect: the architect should have exercised reasonable skill and care in his assessment and has made a clear error. Expert evidence that such an error was negligent would, traditionally, be inadmissible. The Court is able to assess whether it involved a minor slip (such as all mortals make from time to time) or a more serious error inconsistent with reasonable skill and care."

After the conclusion of the oral argument in this sub-trial Mr. Edwards-Stuart drew to my attention a recently reported decision of the Court of Appeal, J.D. Williams & Co. Ltd. v Michael Hyde & Associates Ltd. [2000] Lloyd's Rep PN 823, in which it was held – see the judgment of Ward LJ at p. 830 – that the Bolam test of professional negligence, to which I refer later in this judgment and which, broadly, is to the effect that a professional person is not to be held to have been negligent in the course of exercising his or her profession unless he or she has committed an error which no reasonably competent member of that profession could have made, did not apply in three situations, namely:-

where some professional opinion expressed is not capable of withstanding logical analysis;

where the evidence of professional opinion adduced in the case did not constitute evidence that the particular opinion in question was one to which a responsible body of the particular profession subscribed;

where no special skill was required to determine whether there had been negligence.

In such cases, it would appear, the Court can supply any lack of expert evidence by the application of its own judgment and common sense. I respectfully agree with the analysis of Ward LJ. However, it is vital to appreciate correctly the implications of that analysis. In a case such as the present, if I am satisfied on the evidence that an obvious mistake was made which would not have been made by any careful person of whatever profession, or, indeed, of none, then I can find that the person who made that mistake was negligent. What I cannot do, as it seems to me, is to substitute my own view for that of a professional person of the appropriate discipline on any matter in respect of which any special skill, training or expertise is required to make an informed assessment. Thus, in the present case, as it seems to me, it is not open to me myself to decide what activities were or were not critical to the completion of the Works as a whole: the making of an assessment of the critical path of activities on a construction project is, on the evidence which I have heard, and to which I refer later in this judgment, something which requires a familiarity with the methods by which such an assessment is usually made. Again, other than in the most straightforward case, the assessment of the impact of the occurrence of a particular event on the progress of a construction project seems to me to be something which requires, if not special skill, at least experience which the Court does not possess. Consequently, the effect of my rejection of the evidence of Mr. Luder is that the claims of the Claimant with which I am concerned in this sub-trial must fail unless an analysis of the other evidence put before me demonstrates that WGI made a mistake or mistakes during the course of reaching conclusions about the grant of the extensions of time with which I am now concerned which no-one of reasonable common sense would have made.

I have already given my reasons for rejecting the evidence of Mr. Adams and Mr. Luder. While I do not reject the evidence of Mr. Gibson, I found that it was of no assistance to me in relation to the important issues which I have to decide. Mr. Gibson's evidence was directed to the question what were the real causes of the delay to the completion of the Works. That evidence was always going to be of limited relevance. It just does not impact at all on any issue of liability. So far as causation is concerned, all the evidence could do, if I accepted it, is show that the grounds upon which WGI granted extensions of time to Taylor Woodrow either did not cause any delay at all, or did not cause delay to the extent assessed by WGI, so that potentially the Claimant had suffered loss. Quantum in any event is not to be addressed in this sub-trial. The reasons why the evidence of Mr. Gibson was of no assistance were, first, that he approached his task on the footing that what he had to do was to ascertain by what point during the progress of the Works total delays amounted to the period which in the event was the period by which the Works were late in being completed. Thus he concentrated his attention on the period up to 5 December 1988, at the end of which he concluded that the Works had been delayed by 200 work days, or 40 working weeks. He did not consider in any detail at all any later period. This was unhelpful, as all the events which led to the grant of the extensions of time which it was contended on behalf of the Claimant were granted negligently occurred after 5 December 1988. There was evidence, to which I refer in more detail later in this judgment, that in about February 1989 Taylor Woodrow took steps to try to make up lost time, but Mr. Gibson did not address that evidence or consider to what extent, if at all, Taylor Woodrow had been frustrated in its efforts to make up time by events occurring after 5 December 1988. Although Mr. Gibson had first been retained to advise the Claimant at the time of arbitration proceedings between Taylor Woodrow and the Claimant some years ago, and at that time, so he told me had been provided with documents relating to the matters listed in Schedule 1 to the Re-Amended Statement of Claim, and although in his report for the purposes of this action he had been asked to assess the effect of the matters set out in that Schedule on the progress of the Works, he said that he had been told that he should not refer to the papers which he had had previously, and so he just made "assessments" of the effect of the various matters in Schedule 1 to the Re-Amended Statement of Claim. In the circumstances those "assessments" can have been little better than guesses.
Although I think that I must consider the documentary evidence put before me on behalf of the Claimant in order to decide whether there is material contained within it which is only consistent with negligence on the part of WGI or PMI, my task is not made any easier by the fact that that material has not been put before me on the basis that I should treat any fact apparently recorded in it as correctly recorded. Rather I have been invited to read the documents to which my attention has been drawn with a critical eye, and to have regard to the possibility that the authors of particular documents may have had some motive to misrepresent the true position, or some interest in protecting themselves from criticism. This is all very well, but without cross-examination of witnesses of fact on particular documents I do not think that it would be right to do more than to regard documents which passed between parties during the course of the Project and which appeared to record facts, such as the state of completion of particular building operations, which were not contradicted at the time, as likely to be correct and documents which appeared to record a party's thought processes as doing so accurately.
I had generally fewer reservations about the evidence of Mr. Hendy and Mr. Coleman than about the evidence of Mr. Luder, Mr. Adams and Mr. Gibson. However, I did not feel able to accept the evidence of either without qualification. Mr. Hendy's evidence relied to a significant extent upon his assessment of the explanations of Mr. Peter Hutchings of WGI as to why he had made particular judgments or decisions. Mr. Hutchings did not himself give evidence, and so I think that I should disregard the evidence of Mr. Hendy where it depended upon the uncalled evidence of Mr. Hutchings. At the start of his evidence in chief Mr. Hendy did seek to advance an analysis of factual material relating to the delays allegedly caused by the giving of the instruction to lay Hydrotite which had not been foreshadowed by anything in writing and which proved under cross-examination by Mr. Edwards-Stuart to have been based upon a flawed understanding of the relevant documents. It did seem to me that the whole exercise was prompted by an excess of enthusiasm on the part of Mr. Hendy for the case of WGI. The fact that this incident occurred caused me to treat the whole of the evidence of Mr. Hendy with a degree of scepticism. Mr. Coleman could not, I think, fairly be accused of not appreciating his duty to the Court or not doing his best to perform that duty. However, it did seem to me from some of his answers in cross-examination that he assented rather too readily to some propositions put to him as to the duties of a project manager without considering the importance of the terms of any particular retainer. The relationship of a project manager with his client is, after all, contractual, and to ask or to answer questions on the footing that to be a project manager is to have a status or to occupy an office to which certain obligations are inevitably attached is not, in my judgment, helpful.
As a result of an order made earlier in these proceedings by H.H. Judge Hicks Q.C. a single joint expert, Mr. David Barry, was appointed to undertake the preparation of an as-built programme. The programme prepared by Mr. Barry was put before the Court. Paragraph 22 of Mr. Barry's report was in the following terms:-
"In my opinion, the above approach is a reasonable means of establishing an Indicative As-Built programme for delay analysis purposes, given the lack of primary progress information ( see comments above). However, it must be remembered that it is just that – indicative. Care should be exercised when extracting the actual start and finish dates for specific examination purposes."

That cautionary note proved to have been well sounded. Mr. Barry's as-built programme indicated that commissioning, Activity 144, had been completed on 6 April 1990. In fact, as became clear from an early point in cross-examination of the first live witness, Mr. Gibson, there was no dispute that commissioning continued until the date of the issue of the Certificate of Practical Completion, 22 May 1990, and, indeed, beyond.

The proper approach to the assessment of extensions of time

An issue which needs to be considered before addressing the claims made against WGI and PMI in detail is the question of the circumstances in which it is proper to grant an extension of time under clause 25 of the Standard Form. The answer, in my judgment, depends upon the proper construction of that clause. Leaving aside for a moment the authorities to which my attention has been drawn, particularly by Mr. Taverner, as a matter of impression it would seem that there are two conditions which need to be satisfied before an extension of time can be granted, namely:-

that a Relevant Event has occurred; and

that that Relevant Event is likely to cause the completion of the works as a whole to be delayed beyond the Completion Date then fixed under the contract, whether as a result of the original agreement between the contracting parties or as a result of the grant of a previous extension of time.

This analysis does not strike me as particularly exciting or novel, but I felt that it was necessary at least to consider the question because it seemed to me that, in his submissions, Mr. Taverner was rather glossing over the second element. He cited, helpfully, the decision of Colman J. in Balfour Beatty Building Ltd. v Chestermount Properties Ltd. (1993) 62 BLR 12 and the recent decision of Dyson J. in Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd (1999) 70 Con LR 32 in support of a submission that those decisions

"confirm.. the approach taken by WGI in this case, where relevant and non-relevant events operate concurrently.."

However, it is, I think, necessary to be clear what one means by events operating concurrently. It does not mean, in my judgment, a situation in which, work already being delayed, let it be supposed, because the contractor has had difficulty in obtaining sufficient labour, an event occurs which is a Relevant Event and which, had the contractor not been delayed, would have caused him to be delayed, but which in fact, by reason of the existing delay, made no difference. In such a situation although there is a Relevant Event,

"the completion of the Works is [not] likely to be delayed thereby beyond the Completion Date."

The Relevant Event simply has no effect upon the completion date. This situation obviously needs to be distinguished from a situation in which, as it were, the works are proceeding in a regular fashion and on programme, when two things happen, either of which, had it happened on its own, would have caused delay, and one is a Relevant Event, while the other is not. In such circumstances there is a real concurrency of causes of the delay. It was circumstances such as these that Dyson J. was concerned with in the passage from his judgment in Henry Boot Construction (UK) Ltd v Malmaison Hotel (Manchester) Ltd at paragraph 13 on page 37 of the report which Mr. Taverner drew to my notice. Dyson J. adopted the same approach as that which seems to me to be appropriate to the first type of factual situation which I have postulated when he said, at paragraph15 on page 38 of the report:-

"It seems to me that it is a question of fact in any case whether a relevant event has caused or is likely to cause delay to the works beyond the completion date in the sense described by Colman J. in the Balfour Beatty case."

Although, in my judgment, it is necessary, in order to address sensibly the question of whether to grant an extension of time for completion of works the execution of which is governed by a contract in the Standard Form, to have an understanding of the provisions of clause 25, it was plain from the evidence called at the sub-trial on behalf of the Claimant, in particular that of Mr. Gibson, who, of course is a programming expert, that there are a number of established ways in which a person who wishes to assess whether a particular event has or has not affected the progress of construction work can seek to do that. Because the construction of a modern building, other than one of the most basic type, involves the carrying out of a series of operations, some of which, possibly, can be undertaken at the same time as some of the others, but many of which can only be carried out in a sequence, it may well not be immediately obvious which operations impact upon which other operations. In order to make an assessment of whether a particular occurrence has affected the ultimate completion of the work, rather than just a particular operation it is desirable to consider what operations, at the time the event with one is concerned happens, are critical to the forward progress of the work as a whole. On the evidence of Mr. Gibson and Mr. Luder the establishment of the critical path of a particular construction project can itself be a difficult task if one does not know how the contractor planned the job. Not only that, but the critical path may well change during the course of the works, and almost certainly will do if the progress of the works is affected by some unforeseen event. Mr. Gibson frankly accepted that the various different methods of making an assessment of the impact of unforeseen occurrences upon the progress of construction works are likely to produce different results, perhaps dramatically different results. He also accepted that the accuracy of any of the methods in common use critically depends upon the quality of the information upon which the assessment exercise was based. All of this does, of course, emphasise the vital point that the duty of a professional man, generally stated, is not to be right, but to be careful. While, unless, in a particular case the professional man is actually wrong, the fact that he has not been careful will probably not cause his client any loss, the fact that he is in the event proved to be wrong is not, in itself, any evidence that he has been negligent. His conduct has to be judged having regard to the information available to him, or which ought to have been available to him, at the time he gave his advice or made his decision or did whatever else it is that he did.
In his report prepared for the purposes of this action, Mr. Luder set out just how difficult it can be for an architect to make an assessment of whether a contractor is entitled to an extension of time for the completion of particular works. He considered the question of the grant of extensions of time at Section 4 of his report. That section of the report included:-

"4.10 In order to assess whether the relevant event is likely to delay the completion date the architect has to consider whether the event is affecting works on the critical path, in other words whether it will have a knock on effect which extends beyond the part of the works immediately affected and impacts on the overall completion date. In this context "critical path" does not have to have any technical meaning: as a matter of common sense the architect cannot assess likely future delay without assessing the potential knock-on effects on contract completion.

"4.11 Assessing the knock-on effects on a complex project can be difficult. In my experience an architect would require the contractor to provide a clear explanation as to why in his view the effect of the relevant event is likely to delay the completion date of the works overall. If the contractor fails to provide this, then I would usually expect the architect to grant no EOT.

"4.12 Obviously the architect does not just accept what the contractor says. He has to form his own opinion and exercise his own judgement. This is an important task which affects both his client, the employer, and the contractor. He can seek the views of others (for example another member of the design team if the relevant event concerns that consultant's area) or the project manager or the client. Whether he should do so will depend upon the particular circumstances. For example, if the relevant event concerned changes to piling, in the usual course of things I would expect any architect to seek the views of the structural engineer. In the same way, if the architect knows that the project manager has information as to the critical path, he should consult the project manager.

"4.16 The architect will often have to make his decision during the course of a contract when he has many other demands on his time. He is allowed 12 weeks from the time when he (reasonably) considers he has sufficient information in which to make his decision. This period should provide a reasonable time for a considered decision, but it will not always do so. A further source of difficulty is that notifications can be given well before the full consequences of a particular event can be known….

"4.21 Distinguishing between 2 separate concurrent causes of delay (as in paragraph 4.19) and 2 interacting causes (as in paragraph 4.20) can be difficult in practice. The better the information available to the architect in terms of programmes, critical path and explanation, the less difficult it is to make that distinction."

Mr. Luder's own personal approach to the assessment of whether a contractor was entitled to an extension of time for the completion of works seemed, from his evidence, to be rather less ostensibly scientific than the methods of which Mr. Gibson spoke when giving his evidence. Mr. Luder was asked a number of questions concerning his written report in writing before the sub-trial began. One of those questions related to how he had made an estimate of an extension of time of 11-14 weeks in respect of the effect of delay to the progress of the Works by reason of the alleged late provision and inadequate provision of information relating to the mechanical and electrical services installation. The answer which he gave was:-

"When writing my report I looked at the facts available to me and my conclusion was a judgement, (not a scientific calculation) which lead [sic] to my conclusion that if I had been the architect responsible for making that judgement it would have been in the range 11 to 14 weeks and not the 30 weeks claimed."

That answer indicated, it seemed to me, and Mr. Luder confirmed in his oral evidence, that, so far as he was concerned, the making of assessments of whether a contractor was entitled to an extension of time for the completion of works on account of the occurrence of a Relevant Event as defined in the Standard Form did not depend upon any sort of scientific evaluation of any particular type of material, but simply upon impression formed on the basis of previous experience. In the absence of plain factual error, therefore, it would seem almost impossible to demonstrate that any particular judgment made by an architect was made negligently.

Professional Negligence

As I have already pointed out, the claims against each of WGI and PMI are founded upon the alleged negligence of each of them respectively. It is necessary, therefore, in my judgment, to remind oneself what, subject to the impact of the decision in J.D. Williams & Co. Ltd. v Michael Hyde & Associates Ltd., to which I have referred above, it is that must be established before a claim for damages for professional negligence can succeed. A formulation of the appropriate test to which reference is often made is that of Mr. Justice McNair in his directions to the jury in Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. At pp. 586-7 the learned judge said:-

"…I must explain what in law we mean by "negligence". In the ordinary case which does not involve any special skill, negligence in law means this: Some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. I do not think that I quarrel much with any of the submissions in law which have been put before you by counsel. Counsel for the plaintiff put it in this way, that in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent…."

Although Mr. Justice McNair, in the passage quoted, was concerned with the particular case of medical men, it is, I think, obvious that the approach which he set out is of general application. The application of that test in practice seems to me to involve the necessity for a claimant to prove, in order to succeed in a claim for damages for professional negligence,

what, at the material time, were the standards of ordinarily competent members of the relevant profession in relation to whatever it is which it is alleged that the defendant should have done, but failed to do, or did, but should not have done;

what it is that the defendant actually failed to do, or did, as the case may be;

by a comparison of (i) and (ii) above, that the defendant fell below the standards of the ordinarily competent member of matter or his profession in respect of the matter or matters of complaint.

In the context of the claims against WGI Mr. Taverner urged me to pay careful attention to the words of Lord Reid in Sutcliffe v Thackrah [1974] AC 727 at page 735:-

"In other forms of professional activity the professional man is generally left to make his own investigation. In the end he must make a decision but it is a different kind of decision. He is not determining a dispute: he is deciding what to do in all the circumstances. He may go wrong because he has at some stage failed to take due care and that may not be difficult to prove. But coming to a wrong but honest decision on material submitted for adjudication is rarely due to negligence or lack of care, and it is seldom due to such gross failure to exercise professional skill as would amount to negligence. It is in the vast majority of cases due to error of judgment and there is so much room for differences of opinion in reaching a decision of a judicial character that even the most skilled and experienced arbitrator or other person acting in a judicial capacity may not infrequently reach a decision which others think is plainly wrong."

Again, at page 737 Lord Reid said:-

"The building owner and the contractor make their contract on the understanding that in all such matters the architect will act in a fair and unbiased manner and it must therefore be implicit in the owner's contract with the architect that he shall not only exercise due care and skill but also reach such decisions fairly holding the balance between his client and the contractor."

I think that the point is fairly taken by Mr. Edwards-Stuart that in the first of the passages cited by Mr. Taverner Lord Reid was in fact focusing on the position of someone who has to make a decision of a judicial or quasi-judicial character. Lord Reid indeed went on his speech to explain that he could see no reason why an architect who was required to make a decision as between two parties and who had to act fairly should not be liable if he was negligent. However, for the reasons which I have set out above, in my view, in practical terms the burden shouldered by a claimant who contends that an architect or a project manager has been negligent in granting, or being involved in the grant of, an extension of time for completion of works governed by a contract in the Standard Form is a heavy one: unless the case is very obvious it is most unlikely to succeed.

One of the questions which arises in the present sub-trial concerns the issue whether, as was in effect contended on behalf of the Claimant, PMI owed some obligation to the Board to ensure that WGI performed its contractual duties to the Board to a proper standard. That involves the need to consider how, if at all, the nature and content of the obligations owed by a professional person to his or her client is affected by the known involvement in advising the client of a professional person of some other discipline. In Virgin Management Ltd. v De Morgan Group plc [1996] Court of Appeal Transcript 82 Leggatt L.J., giving the judgment of the Court of Appeal said, at pp.27D-29A of the transcript:-

"The Judge rejected Virgin's claim on the ground that Virgin was "a high profile, successful, commercial entity" with considerable in-house expertise in taxation matters and was "properly equipped to consider and take appropriate action to deal with the tax implications of their property transactions". There was abundant evidence to justify these findings. Many of the facts disclosed by this evidence were not known to Finers at the time, and evidence of them, while possibly relevant on questions of causation, was irrelevant in relation to the scope of Finers' duty. This did not turn on the extent to which Virgin in fact expected to rely on Finers for advice on VAT, but on the extent to which they appeared to Finers to need such advice. As Donaldson LJ pointed out in Carradine Properties Ltd. v D. J. Freeman (1982) SJ 157:

"In deciding what [a solicitor] should do and what advice he should tender the scope of his retainer is undoubtedly important, but it is not decisive. If a solicitor is instructed to prepare all the documentation needed for the sale or purchase of a house, it is no part of his duty to pursue a claim for unfair dismissal. But if he finds unusual covenants or planning restrictions, it may indeed be his duty to warn of the risks and dangers of buying the house at all, notwithstanding that the client has made up his mind and is not seeking advice about that. I say only that this may be his duty, because the precise scope of his 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"…

"Finers were instructed to agree the wording of the SDA prepared by Concita's solicitors in order to ensure that it carried out the terms of the Surveyors' Agreement. They were not instructed to advise on the VAT implications of the proposed transaction, and in the absence of such instructions the Judge's conclusion that they were under no duty to give such advice to apparently experienced and sophisticated commercial clients or to warn them that the transaction had VAT implications is unassailable. It is absurd to suppose that Finers were under any general duty to warn of the possibility of a VAT liability. Clearly there were fiscal implications in a complex transaction of the kind into which Virgin were proposing to enter, and the possibility that these would include VAT problems cannot have been overlooked. Mr. Lehrer was aware that VAT considerations had dictated the identity of the company in which the properties were vested. It is true that these considerations were concerned with liability for output tax and not input tax, but Mr. Lehrer was entitled to suppose that similar consideration would be given to both.

"Given the limited nature of his instructions and the character of the client, Mr.Lehrer was entitled to assume that the fiscal implications of the Surveyors' Agreement were being considered by others within or instructed by Virgin with greater expertise in such matters than himself. Indeed, Mr. Lehrer had confirmation that this was so. At a meeting attended by him on 23^rd June, Mr. De Morgan expressed concern at the VAT implications of an invoice in relation to the Sixth floor of Vision House. But Mr. Lehrer was not instructed to advise in relation to this, and so far as he was concerned whatever problem there may have been was considered and dealt with without reference to him."

While each case depends upon its own facts and the particular contractual arrangements which the parties have made, it is, I think, plain, in the light of the passage which I have quoted, that in the ordinary way a professional person who is engaged to provide a service for a client for whom other professional persons are also providing services is entitled to proceed on the basis that the other professionals will properly perform the services which they have undertaken to perform.

Causation

In this sub-trial I am concerned to try not only liability in relation to the issues which I have set out above, but also to try issues of causation. It is, therefore, necessary that I should remind myself, in the context of the claim against PMI, which depends, so far as causation is concerned, upon the proposition that, had PMI drawn to the attention of WGI those facts which it is contended that PMI should have drawn to its attention, or had PMI challenged the reasoning of WGI in the way in which it is asserted that it should have done, there was a real or substantial, as opposed to speculative, chance that WGI would not have granted any extension of time at all on the CHW Ground or the Safety Cabinet Ground, or would not have granted greater extensions of time on the Hydrotite Ground or the Commissioning Ground than those which it is accepted on behalf of the Claimant a non-negligent architect could properly have granted – see Allied Maples Group Ltd. v Simmons & Simmons [1995] 1 WLR 1602.

The progress of the Works

In the light of my findings that I cannot rely upon the evidence either of Mr. Luder or that of Mr. Adams, the case for the Claimant, so far as all the extensions of time which were criticised were concerned, in the event relied almost entirely upon the simple proposition that it was obvious from the contemporaneous documentation, and in particular from the progress reports made at monthly intervals by Taylor Woodrow, that no delay to the progress of the Works had in fact occurred. It is therefore necessary to consider what the contemporaneous documentation upon which the Claimant relied showed.
In a report prepared for a site meeting held on 25 October 1988 Taylor Woodrow indicated that:-

" The overall delay to the Contract is 30.5 weeks."

Thereafter Taylor Woodrow reported at a site meeting held on 22 November 1988 that, by reference its programme numbered TWC/B364/B/P01/C ("the Original Programme"), the Works were delayed by 30 weeks. The same period of delay was reported at a site meeting held on 20 December 1988, but by the time of a site meeting held on 24 January 1989 the reported delay had increased to 33 weeks. The Original Programme contemplated that activities to be undertaken on the site of the Chelsea Hospital for Women would commence on 1 January 1989. In fact possession of the whole of that site was not given on 1 January 1989. The report prepared by Taylor Woodrow for the site meeting held on 24 January 1989 included, under the heading "DELAYS":-

"The limited possession of the Chelsea Hospital for Women is delaying the erection of the hoarding and the carrying out of the work in this areas [sic]."

In a letter to WGI dated 7 February 1989 Taylor Woodrow indicated that it estimated that the failure to give full possession of the site of the Chelsea Hospital for Women would cause delay to the progress of the Works of some 11 weeks and sought an extension of time for completion of the Works accordingly.

At the next monthly site meeting, that held on 21 February 1989 the minutes, which on this occasion, as on all other occasions, were taken by WGI, and therefore can, in my judgment, be taken to record the position as it then seemed to WGI, recorded, under the heading "Contractor's Report":-

"TWC (that is, Taylor Woodrow) tabled their report dated 17^th February 1989 at the meeting which reported the Contract at present 41 weeks behind programme "P1". This was the result of an in-depth investigation of the programme progress since the last meeting. However, a target programme showing the Contract delayed by 30 weeks was issued and TW confirmed that it is their intention to achieve this target."

I shall refer to the programme mentioned in the passage quoted in this judgment as "the Target Programme." Under the same heading the minutes of the next monthly site meeting, held on 21 March 1989, stated:-

"TWC tabled their report dated 20 March 1989 at the meeting, a copy of which is attached, which reported the Contract at present 41 weeks behind programme P1. TWC are reprogramming the works, in detail, on order to reduce this delay to 30 weeks."

Although that was an accurate summary of what Taylor Woodrow had in fact reported, it seems that Taylor Woodrow had actually led at least PMI informally to believe that it was going to try to improve upon even the target programme. In a "Progress Report for the General Manager" dated 2 March1989 PMI informed the Board that:-

"A new programme showing completion in mid-February 1990 has been produced and confidence remains that with the right degree of effort that completion may be achieved immediately prior to the Christmas break of 1989. (22 weeks late)."

A similar message was conveyed in the next report made by PMI to the Board, which was dated 3 April 1989. To an extent Taylor Woodrow seems to have been giving out mixed messages, for while apparently encouraging PMI to think that completion by Christmas 1989 was possible, in its report prepared for the site meeting held on 21 March 1989 Taylor Woodrow still included as an item:-

"The limited possession of the Chelsea Hospital for Women is delaying the progress of these works. It is estimated that the overall delay in progress to this area will be 14 weeks."

Full possession of the site of the Chelsea Hospital for Women was given, according to a letter dated 21 March 1989 by Taylor Woodrow to WGI, on 20 March 1989. However, it appears that even with the knowledge of when full possession was given, Taylor Woodrow still considered that completion of the Works by Christmas 1989 was possible.

In a report for a site meeting held on 18 April 1989 Taylor Woodrow wrote about "Programme Status":-

"We have issued detailed zone target programmes for the whole Contract which show a target completion date of 18^th February 1990. As this was only issued on the 14^th April 1989 we have not reported delays against this as yet, but against the Contract programme. The delay at present is 43 weeks overall to the Contract."

The estimated delay which it was asserted by Taylor Woodrow in that report resulted from the late giving of possession of the whole of the site of the Chelsea Hospital for Women remained at 14 weeks.

If the reports made by Taylor Woodrow were accurate, it began to fall behind the target programme almost at once. In a report for a site meeting held on 16 May 1989 Taylor Woodrow stated:-

"The overall Contract position is still that of 43 weeks delay to the completion date.

"The monitoring of the progress against the target programme shows a delay of 1.5 weeks on the present most critical item of ceiling grid installation, although the M&E Works are delayed by approximately 4 weeks.

"The progress of the building works on site continues to be directly affected be the M&E installation."

The minutes of the site meeting held on 16 May 1989 contained the following passage under the rubric "Contractor's Report":-

"TWC tabled their report dated 8 May 1989 at the meeting, a copy of which is attached, which reported the Contract delay to the completion date as still 43 weeks.

"The present most critical item is the ceiling grid installation which is delayed 1-5 weeks against the target programme and the M&E works are also delayed by approximately 4 weeks.

"Problems being encountered with the vinyl flooring could cause a further 8 to 12 weeks delay."

The report of the possible delay as a result of problems with the vinyl flooring preceded the instruction to lay Hydrotite, which was only given by Site Instruction 6 dated 18 May 1989. The instruction did not extend to Level 1 or to other areas where a screed had been applied.

A report prepared by Taylor Woodrow for a site meeting held on 13 June 1989 included:-

"The overall Contract position is still that of 43 weeks delay to the completion date.

"The monitoring of the progress against the target programme shows a delay of 4.5 weeks to the ceiling progress. There is also a delay of 4 weeks to the start of the marmoleum flooring. Our Order has been placed (with London Flooring Ltd) and the materials are being procured at present, the floor laying will commence when materials are available on site".

Under the heading "DELAYS" in the report appeared the following:-

"1 The external works continue to be delayed due to the late possession of the Chelsea Hospital for Women. As stated at last months meeting the overall delay to the Contract is 20 weeks….

"2 There has been a meeting where the laying of the floor covering was discussed in detail. Following this meeting there has been an exchange of correspondence and T. W. C. are now able to proceed with the floor laying operation. There has been a considerable delay incurred to date and although we are endeavouring to proceed the full extent of the delay is not yet clear."

From the latter part of the passage quoted, that numbered 2, it would seem that what, at that time, Taylor Woodrow was identifying as a cause of delay was not the instruction to lay Hydrotite as such, but the time which had elapsed before that instruction had been issued.

Taylor Woodrow continued to press WGI to grant an extension of time for the completion of the Works, amongst other reasons on account of the late giving of possession of the whole of the site of the Chelsea Hospital for Women. Mr. John Agate, Taylor Woodrow's Project Manager for the Works, wrote to WGI on that subject a letter dated 5 July 1989. WGI sent to PMI a copy of that letter, and also of its reply, under cover of a letter dated 10 July 1989, which was in the following terms:-

"We enclose a copy of a letter dated 5^th July from Taylor Woodrow regarding their claim together with a copy of our reply. There can however be no doubt that they are entitled to an extension of time under Clause 25.4.12 due to the delay in providing access to the CHW areas of the site. We therefore propose to grant an extension of 10 weeks as an interim measure whilst the additional points raised by Taylor Woodrow and their recent M&E claim are considered."

The terms of WGI's letter dated 10 July 1989 to Taylor Woodrow in reply to Taylor Woodrow's letter dated 5 July 1989 indicated merely that WGI was considering the question of the Chelsea Hospital for Women. PMI seems not to have responded to that communication from WGI as such. PMI did, however, write to WGI a letter dated 14 July 1989, which was in the following terms:-

"You will be aware that the client is very concerned regarding the progress of the project. At the request of the General Manager, I have arranged a meeting with Mr. Tony Palmer, at the Hospital at 12.00 noon on the 24^th July.

"I understand from John Wragg that the performance at the site meeting on the 11^th July was very unsatisfactory particularly with regard to the Taymech element of the project. I spoke yesterday to Mr. Derek Palmer, Managing Director of Taymech, expressing our extreme concern with progress over recent weeks. He assured me that all efforts were being made and that their representation at future meetings would be changed.

"I thought that you would like to be aware of these facts and I believe it is necessary for us to register yet again our deep concern that all endeavours are not being made to complete the project at the earliest possible time."

Although not a direct response to WGI's letter dated 10 July 1989 PMI was plainly expressing in that letter, as it seems to me, concern about the progress of the Works which focused upon the poor performance of Taylor Woodrow. One might have expected that WGI would have taken into account PMI's general views when considering whether or not to grant Taylor Woodrow any extension of time for the completion of the Works, particularly on the ground that there had been a failure to give full possession of the site of the Chelsea Hospital for Women at the time originally contemplated. Messrs. Northcroft Nicholson & Neighbour ("NNN"), who were the quantity surveyors appointed for the purposes of the Project, also received from WGI copies of the correspondence to which I have referred and replied in a letter dated 14 July 1989 as follows:-

"We note from a copy of your letter of 10^th July 1989 that you are proposing to grant a 10 week extension to Taylor Woodrow/Taymech joint venture as an interim award presumably due to the iminent (sic) existing contract completion date.

"May we remind you that any award should, in accordance with Clause 25.3.1.3 of the contract clearly state which relevant events have been taken into account. Also, in accordance with Clause 25.3.1.4 and bearing in mind the number of Client Omissions, the extent to which, if any, you have taken into account omission Variations.

"Clarification of these points at this stage may avoid future misunderstandings."

In a report prepared by Taylor Woodrow for a site meeting held on 11 July 1989 Taylor Woodrow stated that:-

"The overall Contract position is still that of 43 weeks delay to the completion date against the Contract Programme.

"The monitoring of the progress against the target programme shows a delay of 6.5 weeks to the ceiling progress and 4 weeks to the marloleum, which started on site on 19^th June 1989."

Progress to the laying of sheet flooring was said in the report to be 3%. Under the heading "DELAYS" in the report the paragraph numbered 1 was in the same terms as the paragraph so numbered in the report made by Taylor Woodrow to the previous month's site meeting. The paragraph numbered 2 was in the following terms:-

"The laying of the marmoleum flooring has commenced, as has the laying of the d.p.m.[that is to say, Hydrotite] on Level 2. The d.p.m. works commenced on Level 2 on the 3^rd July 1989 and will be ready for marmoleum during week commencing 10^th July 1989, this means that a delay has occurred on Level 2 of at least 7 weeks."

The reported delay of 7 weeks caused by the instruction to lay Hydrotite is not easy to understand, for on the Target Programme the commencement of Activity 53 "Wall & floor finishes" was not scheduled to commence until the beginning of Week 128, which was the week beginning 7 August 1989. The reference cannot be to the Original Programme, for on that programme the start of Activity 53 was shown as the beginning of Week 88, 31 October 1988. No light is shed on the matter by considering the minutes of the meeting at which the report was presented. The relevant part of those minutes was in the following terms:-

"TWC tabled their report dated 7 July 1989 at the meeting, a copy of which is attached, which reported that the Contract delay to the completion date is still 43 weeks. Monitoring shows a delay in the target programme for ceiling installation of 6.5 weeks and 4 weeks to the Marmoleum which started on site on 19 June 1989.

"TW commented that progress was still much as reported in the Watkins Gray minutes of the previous meeting, with a further 2 weeks delay on the target programme for the floors and ceilings. They stated that until the M&E work and its snagging is completed, work on the ceilings and floors can only follow tightly on these completions.

"In response to the Architect's question as to whether the target programme will be met, TW replied that they could only do their best. They added that the TM report is the key to the progress of the operation as a whole."

WGI was evidently concerned at the terms of the report on progress made by Taylor Woodrow at the site meeting held on 11 July 1989, for the next day it wrote to Taylor Woodrow as follows:-

"We must express our deep concern at the situation reported at yesterday's Site Meeting. You have given us assurances over the last 2/3 months that you will complete this contract in accordance with your revised target programme, but again we find that two weeks have been lost in the last four on items which must, by any standards, be on the critical path. This is a situation which cannot continue.

"Reference is often made at meetings to the effect that "steps are being taken" but we see no improvement in the situation. It seems that once the formal site meeting is over any impetus disappears and the works return to what has become a sea of tranquility (sic) disturbed only by a four weekly tidal cycle. In order to disrupt this sequence and in an effort to increase the pressures on your team, we propose to hold site meetings at two weekly intervals commencing on Tuesday, 25^th July at 9.30 a.m. We would expect the joint venture to be represented at the highest levels in the various disciplines, in order to demonstrate to our client that some reliance may be placed in your statements that you are resolved to complete by mid-February 1990."

Thereafter site meetings were in fact held at approximately fortnightly intervals.

In a letter to PMI dated 20 July 1989 WGI wrote as follows:-

"With reference to our letter of 10^th July we now enclose a copy of our formal Notification of Revision of Completion Date. The Contractor has claimed a delay due to the non-availability of the CHW areas of the site of 30 weeks but we do not consider this to be fair and reasonable without further documentation. However as we have always maintained that the only operations being carried out on site during the last 12 weeks of the contract were external works a delay of 10 weeks must be significant.

"We therefore conclude that a 10 week extension of time is a fair and reasonable extension of time."

That letter provoked a response from PMI in a letter dated 26 July 1989 which was in the following terms:-

"We are in receipt of your letter dated 20^th July 1989, granting an extension of ten weeks to the Contract completion date and related to the delay in making all of the Chelsea Hospital for Women site available to the Contractor.

"Although we would not interfere with any of the assessments you have to make, we again in the manner that you have administered the assessment have not been able to provide the Client and the Department of Health with the detailed information expected in such circumstances prior to an award being made.

"The details and explanations leading to what some may consider is a surprising adjudication of ten weeks are required as a matter of urgency, in order to keep all interested parties fully informed."

PMI sent a copy of WGI's letter dated 20 July 1989 to Mr. John Plant, the General Manager of the Board, under cover of a letter dated 27 July 1989. For reasons which are obscure Mr. Wragg, the author of the letter, thought it appropriate to include in the letter:-

"Although notice was given that this (that is, the grant of an extension of time of 10 weeks) had to be considered, we are rather surprised that this has been granted without the submission of the detail leading to this assessment for your information and the Department of Health's.

"This expected detailed explanation has been requested and will be forwarded to you as soon as this is received."

No live witness of fact was called on behalf of PMI and so there was no opportunity to explore exactly what was meant in the passage which I have just quoted. However, doing the best I can, it looks to me as if PMI possibly misunderstood from the comment in the letter dated 10 July 1989 from WGI to Taylor Woodrow enclosed with WGI's letter of the same date to PMI that "We are considering the question of the Chelsea Hospital for Women" that WGI would come back to PMI before making a final decision concerning the grant of any extension of time.

Taylor Woodrow prepared a progress report for the next site meeting, which was that held on 25 July 1989. Under the heading "PROGRAMME STATUS" that report said:-

"The overall Contract position is still that of 43 weeks delay to the completion date against the Contract Programme.

"The monitoring of the progress against the target programme shows a delay of 6.5 weeks to the grid/suspended plaster installation progress and 6 weeks delay to the marmoleum installation which started on site on 19^th June1989.

"We are at present holding our own, but taking special measures with our Sub-contractors which involves considerable out of sequence working in our determination to complete our works to the target programme. However, these measures will have additional financial repercussions for which we expect reimbursement from the Client."

In the section of the report entitled "PROGRESS" it was recorded that "Sheet Flooring" was 7% complete. The "DELAYS" section of the report included:-

"1 The external works continue to be delayed due to the late possession of the Chelsea Hospital for Women, and although an extension of 10 weeks has been granted, T.W.C. believe that the overall delay to the Contract will be 20 weeks…

"2 The laying of the marmoleum flooring is continuing on both Levels 1 and 2, with a start on Level 3 on Monday, 24^th July 1989. The scope of the works has changed with the inclusion of the D.P.M. T.W.C. are endeavouring to carry out this work by increasing resources to this critical item but by doing so this is disrupting the regular progress of the works of both preceding and following trades."

The minutes of the site meeting reported that:-

"31.2.2 TWC stated that the situation on site was improving and that there was a total commitment to completion in February 1990 as the target programme."

WGI replied to the letter dated 26 July 1989 which PMI had written concerning the extension of time granted by WGI to Taylor Woodrow as a result of the failure to give full possession of the site of the Chelsea Hospital for Women on 1 January 1989 in a letter dated 3 August 1989, which was in the following terms:-

"Thank you for your letter of 26^th 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, one 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 !0^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 judgement 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."

As no live witness of fact has been called to give evidence on behalf of WGI, the only explanation which I have of why WGI granted an extension of time to Taylor Woodrow on the CHW Ground is what is set out in this letter. It seems to me from the terms of the letter that WGI was prompted to grant an extension to time not because it felt that the progress of the Works had been, or was likely to be, affected by the failure to give possession of the whole of the site of the Chelsea Hospital for Women before 20 March 1989, but because it considered that Taylor Woodrow ought to be relieved of the risk of liquidated and ascertained damages being levied in respect of the period during which possession of the whole of the site of the Chelsea Hospital for Women was not available. I reach this conclusion both from the inclusion in the letter of the citation from the judgment of Williams LJ in Wells v Army & Navy Co-operative Society (1902) 86 LT 764, which otherwise has no particular relevance to the issue whether the grant of an extension of time was appropriate, and from the fact that WGI apparently did not envisage that Taylor Woodrow would be entitled to be paid any amount by way of loss and expense under Clause 26 of the Main Contract. WGI's view of the actual progress of Taylor Woodrow, or rather the lack of it, appears to emerge from the terms of WGI's letter to Taylor Woodrow dated 12 July 1989, which I have quoted above.

In the event, WGI was so little impressed by the expression of surprise at the grant of an extension of time on the CHW Ground articulated by PMI in its letter dated 26 July 1989 that it proceeded to grant a further one week extension on the same ground. In a letter to PMI dated 18 September 1989 WGI wrote, so far as is presently material, as follows:-

"With regard to the extension of time of 10 weeks granted in respect of the CHW delays we had assured [sic] the 13^th March as the date when total possession was granted to the Contractor. Our attention has been drawn to a Clerk of Works Direction which confirms that the actual date was 20^th March. The Contractor is entitled therefore to a further 1 week extension giving a revised Completion Date of 8^th October. In accordance with your requirement of two weeks notice of any award we shall delay the issue of formal documentation until 29^th September which is the latest date possible under the provision of clause 25.3 of the contract."

PMI passed on a copy of that letter to Mr. Plant of the Board, who expressed concern about the further proposed extension of time on the CHW Ground. In a letter to Mr. Plant dated 29 September 1989 PMI wrote, in relation to that concern:-

"The Architect's letter dated 18^th September 1989, which states that a further weeks extension of the Contract Completion Date understandably concerns you.

"March 20^th 1989, we confirm is the date when the Contractor had the whole site and on the basis of the previous assessment by the Architect, the whole period from 1^st January 1989 – when he was due to have the site, until 20^th March 1989 when he received the last section, is the subject of an 11 week extension and this award is based on previous contract case-law."

The further extension of time was granted on the same day.

The next site meeting held after that on 25 July 1989 was held on 8 August 1989. Taylor Woodrow's progress report for that site meeting, under the heading "PROGRAMME STATUS" included:-

"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."

The report included an indication that "Sheet Flooring" was then 10% complete. The terms in which "DELAYS" were reported were exactly the same as in the previous report. The minutes of the meeting included:-

"32.2.3 TW commented that out of sequence working causes inconvenience to operatives' working but that they are intending to meet the February completion date."

Taylor Woodrow's progress report for the next site meeting, that held on 22 August 1989, included:-

"As can be seen from the progress of the vinyl flooring we are managing to achieve the programmed rate of installation for this item, even though the scope of these works has changed. This production attainment has been to the detriment of the following trades, by causing considerable disruption to the preceding and following trades."

The recorded progress of "Sheet Flooring" was 20% complete. By the time of Taylor Woodrow's next report, for the site meeting held on 5 September 1989, the progress recorded was 26% complete, and it was reported that:-

"The vinyl flooring continues to be the most critical item of work and we are endeavouring to achieve the progress required, but this is causing disruption to the preceding and following trades."

The minutes of the site meeting stated, under the rubric "Contractor's Report":-

"34.2.1 TW tabled their report dated 5 September 1989 at the meeting, copy attached, which reported that the progress position is the same as at the last meeting with the works being overall 6 weeks behind the target programme. The vinyl flooring was cited as being critical and causing disruption to preceding and following trades.

"34.2.2 P2 of the report details the progress during the last 2 weeks and overall of elements of the work.

"The Architect commented that he was concerned to see the incidents in the report of time being lost, such as with sheet flooring. TW responded that in some instances the sheet flooring was in but could not be reported as finished as the skirtings remained to be installed, also the damp proof membrane installed with some of this flooring had caused delays. However, TW maintained that this would not prevent them from achieving their target completion date."

The next site meeting took place on 26 September 1989. Taylor Woodrow's progress report for that site meeting, under the heading "PROGRAMME STATUS" recorded:-

"The monitoring of the progress against our target programme (Completion 18^th February 1990) shows a delay of 13.0 weeks to the ceiling grid installation. We have changed the programme sequence, now making the vinyl flooring the critical path activity instead of ceilings. This has been necessitated by the addition to the works of a d.p.m. between the linoleum and the power floated floor. At present the laying of the linoleum flooring is 9 weeks behind programme."

"Sheet Flooring" was reported as 44% complete. The minutes of the meeting, at minute 35.2.1, included:-

"Although some slippage is still evident the Joint Venture is nervous but still intend to complete by mid-February. i.e. week 155."

The progress of the flooring seems to have improved over the period leading up to the next site meeting, which was held on 10 October 1989. The report which Taylor Woodrow prepared for that meeting recorded that "Sheet Flooring" was 68% complete and stated, under the heading "PROGRAMME STATUS",

"The monitoring of the progress against our target programme (Completion 22^nd February 1990) shows a delay of 13.0 weeks to the ceiling grid installation, but the grid installation is virtually complete, with mainly corridors outstanding. As stated previously we have changed the programme sequence, now making the vinyl flooring the critical path activity instead of ceilings. This has been necessitated by the addition to the works of a d.p.m. between the linoleum and the power floated floor. At present the sheet flooring is behind the target programme by 6 weeks.

"We anticipate completion of major part of the flooring by the end of the week, which will leave the operation approximately 4-5 weeks late."

The minutes of the meeting, in the section entitled "Contractors Report" at minute 36.2.1, included:-

"TWC tabled their report dated 6 October 1989 and TM dated 10 October 1989, copies of which are attached to these minutes. The progress percentages are slightly better than the previous report and although the Joint Venture is still nervous and labour is a problem they report a target programme completion date of 22 February 1990."

In a letter to WGI dated 11 October 1989 Taylor Woodrow wrote, so far as is presently material, as follows:-

"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."

The programme which was apparently enclosed with that letter is a perplexing document. It was entitled "Flooring Programme showing the effect of Hydrotite" but contained no key to the significance of the markings upon it of, respectively, a solid line, a dotted line and a line with squiggles on it for each of the zones in which Hydrotite was laid on Levels 2,3,4,5 and 6 of the new hospital building. The parties in this sub-trial have treated the solid line as representing what Taylor Woodrow contended was its original intention, as at the time the Target Programme was prepared, concerning the laying of the flooring, and the dotted line as representing Taylor Woodrow's assertion as to what either had happened in fact or was expected to happen. The line with squiggles on it was said to represent the laying of carpet. This interpretation may be correct, but the programme itself gives no clue whether it is or not. There is no obvious reason for the programme to show any carpet laying activity separately. More importantly, in terms of raising doubts as to the proper interpretation of the programme, the programme indicated that Taylor Woodrow had intended, if the solid line indeed represented what Taylor Woodrow contended were its original intentions, to commence the laying of flooring first in Zone 1 on Level 2 at the beginning of Week 118, which was the week beginning 29 May 1989. There is no evidence whatsoever before me that that ever had been the intention of Taylor Woodrow. As I have already mentioned, the Target Programme showed wall and floor finishes on Level 2 as Activity 53 and as programmed to commence, being the earliest of the wall and floor finishes activities to start, at the beginning of Week 128, the week beginning 7 August 1989. According to the Target Programme the last of the wall and floor finishes activities to finish were those on Levels 4 and 5, which were programmed to be completed by the end of Week 146, the week beginning 11 December 1989. The programme enclosed with Taylor Woodrow's letter dated 11 October 1989, if the solid lines represented what Taylor Woodrow had originally intended at the time the Target Programme was prepared, showed that Taylor Woodrow had intended to complete wall and floor finishes by the end of Week 133. Bearing in mind that as at 11 October 1989 the work of laying the flooring had not been completed, what the programme showed as the situation after that date was obviously a projection. However, what the programme projected was that work in Level 3 Zone 4, Level 4 Zones 2, 4 and 5, Level 5 Zones 2, 3, 4, and 5 and Level 6 Zones 4 and 5 would all be continuing after 11 October 1989, and that the work would finish at the end of Week 150, the week beginning 8 January 1990. This is not obviously easy to reconcile with the report of Taylor Woodrow to the site meeting on 10 October 1989 that the sheet flooring was 6 weeks behind the Target Programme and that the major part of the flooring was expected to be complete by the end of that week. I have heard no live evidence from any witness who was engaged on the Works on behalf of Taylor Woodrow, and so I am reluctant to draw adverse conclusions concerning Taylor Woodrow's approach to claiming an extension of time on the Hydrotite Ground, but I do find the programme apparently enclosed with Taylor Woodrow's letter dated 11 October 1989 at best needlessly confusing and at worst downright dishonest.

Taylor Woodrow's claim for an extension of time for completion of the Works on the Hydrotite Ground was considered at a meeting held on 12 October 1989 attended by representatives of, amongst others, PMI and WGI. Minutes of that meeting taken by WGI were put in evidence. The minutes included:-

"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."

There was no exactly contemporaneous evidence as to how that assessment had been made, but, as I shall explain, some indication was given in a letter dated 17 November 1989 which WGI wrote to PMI. WGI did write a letter to PMI on the day of the meeting in which it said:-

"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:-

The cause of the delay is a Relevant Event i.e. clause 25.4.5.1

The effect of this additional work would delay the completion of the works beyond the Completion Date.

A period of 5 weeks would 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."

While one would expect that an architect supervising a construction project would be very much in touch with the state of progress of the works, and so, no doubt, WGI had knowledge of the progress of the floor laying operations quite independently of what Taylor Woodrow reported, it does nonetheless seem that the decision to award an extension of time of 5 weeks was taken soon after receipt of the Taylor Woodrow programme to which I have referred and without trying to resolve the problems to which that programme gave rise. A 5 week extension of time for the completion of the Works on the Hydrotite Ground was granted by WGI on 19 October 1989.

Although by this stage of the Project extensions of time for completion of the Works had been granted only on the CHW Ground and the Hydrotite Ground, Taylor Woodrow had been seeking further extensions of time on a variety of other grounds. WGI wrote to PMI concerning some of those other grounds, and their interrelationship with the CHW Ground and the Hydrotite Ground in a letter dated 23 October 1989:-
"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:-

The cause of delay is a Relevant Event, i.e. clause 25.4.6

The delay would delay completion beyond the Completion Date.

A period of 9 weeks would be a fair and reasonable extension of time in this respect.

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 on 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 next regular site meeting was held on 24 October 1989. As usual Taylor Woodrow prepared a progress report for the meeting. Under the rubric "PROGRAMME STATUS" this report said:-
"The linoleum flooring installation is continuing to make progress. Substantial areas of linoleum have been completed, although delays and additional costs have been incurred in achieving this due to the additional work. In the main the linoleum flooring is behind programme but will be essentially complete by week 140. The ceiling grid installation should be virtually complete by the 12^th November 1989, with the associated services complete by the 26^th November 1989.

"However, we are suffering problems with the pre-commissioning of the building services due to the disruption caused by the inclusion of the hydrotite membrane."

As at the date of the report linoleum flooring was said to be 78% complete. Under the heading "DELAYS" in the report appeared this:-

"2 The laying of the marmoleum flooring is being carried out on floors 1-5 inclusive. The scope of the works has changed with the inclusion of the D.P.M. T.W.C. are endeavouring to carry out this work by increasing resources to this critical item but by doing so this is disrupting the regular progress of the works of both preceding and following trades. Although this is mainly affecting the building trades e.g. hanging doors etc. the progress of the commissioning engineer is also seriously affected in the delays that are being caused to the pre-commissioning works."
The reaction of Taylor Woodrow to the grant of an extension of time of 5 weeks on the Hydrotite Ground was to write a letter dated 30 October 1989 to WGI seeking yet a further extension of time on that ground. The letter was in the following terms:-

"Further to your grant of extension of time dated 19^th October 1989 No 4, we would note that you have now fixed the completion date as the 12^th November 1989.

"We would draw your attention to our notice of delay dated 11^th October 1989, in which we estimated the completion of the linoleum flooring would be 17 weeks (14^th January 1990), behind our target programme. With all due respect in our view this was a reasonable estimate of the delays involved by the inclusion of the hydrotite.

"We must now inform you that we are incurring considerable delays to the following trades due to the periods of time that the hydrotite system requires areas of the building to be closed to all operatives other than those laying the hydrotite system. This situation is becoming particularly difficult with the commissioning of the building and the completion of the ceiling installation. Obviously we are having to take special measures to attempt to overcome the above described situation.

"We did report at the Site Meeting that it will be necessary for the Joint Venture to take extra special measures, such as working our commissioning team through the night and over the weekends. Clearly we shall incur substantial extra costs as a result of the disruption to the works brought about by the hydrotite system.

"We would record that the completion date now fixed at the 12^th November 1989 is not a fair and reasonable one and we must ask you to reconsider your decision."

The next site meeting took place just over a week after Taylor Woodrow had written the letter which I have quoted in the preceding paragraph. Taylor Woodrow's progress report recorded that linoleum flooring was 90% complete. Under the rubric "DELAYS" were set out comments very similar in terms, so far as concerns the matters which I am presently considering, to those in previous reports. The report also included the following:-

"Substantial areas of linoleum have been completed, although delays and additional costs have been incurred in achieving this due to the additional work and restrictions imposed by the inclusion of the hydrotite system within the line of programme. We can however record that the major part of the linoleum is complete with the exception of the theatre areas which are currently being worked on. This means that the current delays to the theatre area are some 13 weeks late and to the overall finishing of the programme 10 weeks late. Clearly this is the result of the late inclusion of the hydrotite membrane and this is now having a considerable affect (sic) on the following trades and the commissioning operations within the building."

The minutes of the site meeting held on 7 November 1989 yet once more recorded the view of Taylor Woodrow that:-

"..on current working the mid-February contract completion date would be met."

In a letter dated 8 November 1989 to WGI Taylor Woodrow returned to the theme of a further extension of time for the completion of the Works on the Hydrotite Ground, this time asking for an extension of time of a further 9 weeks beyond the then currently fixed completion date. As appears from a letter dated 17 November 1989 written by WGI to PMI, although WGI felt that an extension of time of a further 9 weeks was not justified, WGI was minded to grant a further 5 weeks, which is what it eventually did, by a Notification of revision to Completion date dated 24 November 1989. Although WGI considered that the appropriate extension was a further 5 weeks, as that would have brought the revised date for completion to 31 December 1989, WGI in the event granted an extension to 14 January 1990 to take account of the Christmas period. The letter dated 17 November 1989 was in the following terms:-
"With reference to the claim submitted by Taylor Woodrow in respect of delay and disruption resulting from the Hydrotite system we have now reconsidered our previous award in the light of actual progress achieved. You will recall that as a result of tests on the retained mixture content of the slabs a choice had to be made between delaying the installation of floor coverings with its commensurate delay to the contract or adopting the Hydrotite system which was a process new to both the Design Team and the contractor. The client agreed that this system should be adopted to avoid the open ended situation which would result from waiting to allow the moisture content to drop to acceptable levels. Appropriate instructions were issued to the contractor.

"During the installation period it became clear that the introduction of this new system was having a disruptive effect on the progress of the work and we concluded that, based on progress on floor coverings could reasonably have been completed by the end of week 138 rather than week 133 as indicated on the target completion programme, an extension of time of 5 weeks was awarded giving a new completion date of 12 November. We have continued to monitor progress on site and it is clear to us that our previous conclusions were too optimistic. In our previous assessment we did not make any allowances for the difficulties which would arise when the large open areas were completed and those remaining would be difficult to close off either because of size, location or other trades needing priority. It should be noted that the contractor has at all times maintained a high labour force on floor laying and has transferred work between sub-contractors in order to progress as quickly as possible. We do not believe that the contractor could be accused of not using his best endeavours in this respect.

"We have given full consideration to the submissions contained in the contractor's letters of 30 October and 8 November but do not at this time accept that a further delay as claimed of 9 weeks is justifiable. We believe that all linoleum flooring could reasonably be complete by the end of week 143 and it is our opinion that a further 5 week extension would be fair and reasonable. However such an extension would prolong the contract into the statutory Christmas period, and whilst we are aware that the contractor intends to work at least some trades during this period we cannot require them to do so. Thus the revised Date for Completion will be 14 January 1990. Our notification to the contractor will be delayed until 24 November in order for you to advise the client and the Department."
The terms of the letter dated 17 November 1989 quoted in the preceding paragraph are not easy to reconcile with the terms of a letter dated 4 December 1989 also written by WGI to PMI. The first paragraph of the latter letter read as follows:-
"We acknowledge receipt of a copy of your letter of 27 November to the Department of Health enclosing Capricode Report No.10, and confirm our concern at some of its contents. The expected date for Practical Completion is shown on 1 May 1990 whereas the Contractor has advised the Client both directly and at Site Meetings of their intention to complete by 22 February. This discrepancy would seem to indicate that it is possible for the February date to be achieved. It is also noted that there are other comments by the Client on progress and the general state of the contract which have not been copied to us, and that the Client considers the state of the contract to be unsatisfactory."

If, as WGI asserted, it considered that it was, as at 4 December 1989, possible that the Works might be completed by 22 February 1990, then it would seem to follow that the progress of the Works had not in fact been delayed by the instruction to lay Hydrotite, for the anticipated date of completion of the Works still remained what it had been when the Target Programme had been prepared. As appears from Taylor Woodrow's report of progress to 24 November 1989, included in its report prepared for the site meeting held on 5 December 1989, linoleum flooring was 100% complete by 24 November 1989.
The minutes of site meeting number 39 held on 21 November 1989 included at minute 39.2.1, under the heading "Contractor's Report":-

"Notwithstanding the delays detailed fully in their last report TWC are still targeting the 22 February 1990 as the Contract Completion Date. The current Contract position is in delay by 10 weeks to Programme P364/B/P3/A."

For the next site meeting, that held on 5 December 1989, Taylor Woodrow prepared a progress report which recorded progress as at 24 November 1989, the date upon which WGI had granted an extension of time for the completion of the Works to 14 January 1990 on the Hydrotite Ground. According to the report, as I have already noted, linoleum flooring was 100% complete as at 24 November 1989. In the section of the report entitled "PROGRAMME STATUS" appeared the following:-

"We are continuing to target the 22^nd February, 1990 as the contract completion date. We have and will continue to take special and extraordinary measures to overcome the delays that have been incurred. These measures include night work, weekend work, drafting in of labour to site outside normal hours and the proposal of working the Christmas period both day and night.

"The M&E installation is continuing and should be complete by the 22^nd December, 1989. The Commissioning programme has been revised and issued. There have been problems with the commissioning of AHU 4/1, but these will be resolved for a continuation of commissioning on level 3 on Wednesday 6^th December, 1989.

"We are progressing the works inspite of delays, but we are finding it difficult to give an accurate progress position. However, we are still of the opinion that, to the major part, the contract will be complete be the 22^nd February, 1990. Subject to the commissioning and the second fix installation of the M&E works progressing in time for the builders work to complete."

In its reports for the site meetings held, respectively, on 21 December 1989 and 16 January 1990 Taylor Woodrow continued to express confidence that the target completion date of 22 February 1990 would be met, at least as to the major part of the Works. In the first of these reports Taylor Woodrow's view was stated to be that the target date would be met, "Subject to the commissioning and the 2^nd fix installation of the M&E works progressing in time for the builders work to complete.", while in the second the view expressed was that:-

"As stated previously we have taken extraordinary measures to target the 22^nd February, 1990 as the Contract Completion Date. The building works to the Contract will be essentially complete, but excluding the environmental tests and minor items on the building side.

"We are still hopeful that the environmental tests will be complete within 4 weeks of our Target Completion Date i.e. 25^th March, 1990, together with associated builderswork. We would assure you that we are continuing to use our best endeavours and will keep you informed of the progress of the works."

On 15 and 19 March 1990 WGI gave verbal instructions to Taylor Woodrow to disconnect all the services to safety cabinets, to move the cabinets, to cut back the worktops upon which the safety cabinets stood, to alter the heights of some of the worktops, and then to replace and to reconnect the safety cabinets. Taylor Woodrow acted upon those instructions. In a letter to WGI dated 21 March 1990 Taylor Woodrow asserted:-
"Clearly from the above described works we are suffering serious delays to the commissioning and completion of the 2^nd floor laboratory areas, the full extent of which we will notify you in due course."

In minutes taken by PMI of a meeting held on 3 April 1990 it was recorded that:-

"Safety Cabinets modifications now complete, except one damaged gas supply."

It thus appears that the modification work to the safety cabinets cannot have taken more than the period between about 15 March 1990 and about 3 April 1990 – less than 3 weeks. It is right to say that in a letter dated 26 February 1991 to Taylor Woodrow WGI did write:-

"With regard to works associated with the safety cabinets we were on site frequently when this work was being carried out and are satisfied that the work to the benches was completed within the one week which we originally allowed."

However, in a letter dated 15 August 1990 to WGI Taylor Woodrow alleged that the execution of the works to the safety cabinets caused delay to the completion of the Works of 6 weeks, and Taylor Woodrow claimed an extension of time for the completion of the Works accordingly. WGI sought the views of Messrs. Austen Associates concerning a contention in Taylor Woodrow's letter that delay was caused by the need to carry out commissioning work on the safety cabinets after the modifications to the safety cabinets and the benches upon which they stood had been completed. Messrs. Austen Associates responded in a letter dated 16 October 1990. That letter concluded with the following summary:-

"To summarise, relative to the TWC 15^th August letter. We have no evidence to suggest that there was any delay to the final fix of services to the cabinets as they were complete prior to the bench changes. The "K1" test was only postponed to a later date and in any event is required to be the final test, which took only two days overall, prior to the client's use. There was no delay to the commissioning of the supply and extract systems as they were commissioned and witnessed prior to the bench changes."

Previously, in a progress report for a site meeting held on 27 March 1990, Taylor Woodrow had estimated the delay caused to the completion of the Works by the instructions to carry out the work which I have described to the safety cabinets at 4 weeks.
A problem which was encountered during the process of commissioning the mechanical services which formed part of the Works was that the chillers did not perform adequately. At the time there was some uncertainty as to whether this was as a result of the specified chillers not delivering the required cooling because chillers of that type could not, or as a result of the chillers supplied being defective.
Notwithstanding that the difficulties with the chillers had not by then been resolved, so that the Works were not actually in a state of Practical Completion, with the consent and on the instructions of the Board, WGI issued a Certificate of Practical Completion of the Works on 22 May 1990 certifying that Practical Completion had been achieved on that date.

Events after Practical Completion

Without, it seems, consulting anyone, WGI decided to grant, as it explained to Taylor Woodrow in a letter dated 29 August 1990, an extension of time for the completion of the Works of one week on the Safety Cabinet Ground. I have heard no evidence as to why it was felt to be appropriate to grant an extension on that ground or as to how the period of one week was assessed. Taylor Woodrow replied the next day contending that the extension granted was insufficient and that an extension of time for completion of the Works should be granted up to 22 May 1990. WGI then, by letter dated 14 September 1990, sought the opinion of Messrs. Austen Associates, the mechanical and electrical engineering services consultants engaged for the purposes of the Project, as to whether Taylor Woodrow was entitled to a further extension of time for completion of the Works on the Safety Cabinet Ground. In a letter to WGI dated 16 October 1990 Messrs. Austen Associates expressed the view that the works to the safety cabinets had not caused any delay to the completion of the Works. WGI was evidently not impressed with that opinion, for in a letter to PMI dated 30 January 1991 WGI wrote:-
"We have now reviewed further evidence from Taylor Woodrow in support of their claim for extensions of time related to the modification to benches under safety cabinets. It is clear that they were frustrated in their attempts to get the specialist firm to return to site to complete the commissioning. We have assessed this as a further two weeks. In addition to this, the Structural Engineer has indicated that they consider a further delay of 1.5 days should be acknowledged resulting from changes to reinforcement details.

"In order to allow the agreed periods for advising the client and the Department, we will delay the issue of the formal award to Taylor Woodrow until the end of next week. The revised date for completion will therefore be 7 March 1991."

PMI seems to have been surprised at what WGI proposed to do. In a letter to WGI dated 31 January 1991 PMI wrote, so far as is presently material, as follows:-

"Can we, as a matter of urgency, have further information on the particular points of the evidence you have had to consider.

"The areas affected by the problems were not considerable nor were the costs associated with modifications of the benches etc. Further explanation of why the matters associated with this comparitively (sic) small element should lead to a 3 week extension of the completion of a major hospital project, is felt necessary before formally submitting to the Clients Chief Executive and the Department of Health."

WGI set out its justification for its proposed action in a reply to PMI dated 1 February 1991:-

"Thank you for your letter of 31 January 1991 regarding further extensions of time. The contractor has produced the Certificates issued by Envair at the time of final commissioning. These are countersigned by Austen Associates and show that final commissioning was not achieved until early May. Instructions to remove the safety cabinets and reduce the benches were issued on 20 March, thus establishing a delay of six weeks. You will recall that it was the inability of Envair to complete K1 tests which highlighted the problem. However, we believe that the full delay should not fall against the Employer since it is our opinion that had the contract not been in delay, Envair's workload would not have been so great. We believe that a further two weeks is a fair and reasonable evaluation."

WGI in fact granted a further extension of time to Taylor Woodrow for completion of the Works on the Safety Cabinet Ground of two weeks on 21 February 1991.
On Taylor Woodrow's original programme the period allowed for commissioning, Activity 144, was 23 working weeks, between the start of Week 92, the week beginning 28 November 1988, and the end of Week 117, the week beginning 22 May 1989. That calendar period included 3 non-working weeks, over Christmas 1988 and over Easter 1989. The Target Programme also allowed 23 working weeks for commissioning, between the start of Week 128, the week beginning 7 August 1989, and the end of Week 151, the week beginning 22 January 1990. The as-built programme prepared by the single joint expert, Mr. David Barry, showed that commissioning commenced in fact on 18 September 1989 and continued until 6 April 1990, a period of just over 26 working weeks. In fact it was quite clear from the documentary material put before me, and in the end was not, I think, disputed that commissioning was not completed by the date of Practical Completion, 22 May 1990, so that commissioning actually lasted for a period of some 6.5 weeks longer than Mr. Barry showed in his report.
Under cover of a letter dated 23 May 1991 to WGI Taylor Woodrow enclosed "further details of the delays and disruption which have arisen due to the delays and disruption to the commissioning." Rather surprisingly, Taylor Woodrow asserted that the completion of the Works had been delayed for 91 weeks by the problems which it had encountered in relation to commissioning. PMI, by a letter dated 25 June 1991, sought to arrange a programme of meetings between the various members of the professional team which had been involved in the Project to consider the claims which Taylor Woodrow had made. Messrs. Austen Associates communicated their views in a letter to Mr. Peter Hutchings of WGI dated 9 July 1991. That letter included:-
"We note that TWC continue to seek a further 11 weeks extension, to close the gap between the current completion date and the date of issue of the Certificate of Practical Completion notwithstanding that the progress of the works was significantly affected by matters for which they alone must accept responsibility."

The letter then set out examples of such matters.
WGI produced a report dated 16 July 1991 which was entitled "Report on Final Claims submitted by Taylor Woodrow Construction Holdings Ltd (successors to Taylor Woodrow Construction Ltd/Taymech Ltd – Joint Venture)"and to which I shall refer in this judgment as "the Claims Report". At paragraph 2 (xi) of the Claims Report WGI considered "Delay due to problems with M&E Commissioning":-
"Details of this claim were received at the end of May 1991 and we await the detailed analysis being prepared by AA. We have, however, examined it in some detail, and while the bulk of it is extremely technical, such that it requires the specialist knowledge of a Mechanical Services Engineer to assess it, we have isolated a number of area where problems arose resulting in instructions to open up and/or alter the installed works, These are dealt with in Appendix B and result in an award of an extension of time of 20 weeks, 12 of which are to be concurrent. This award covers the period relating to an extension to time previously awarded under clause 25.4.11 which relates to a delay in the removal of an LEB transformer. This award is withdrawn as the delay by LEB did not prevent completion of the works."

At Appendix B to the Claims Report WGI considered "Evaluation of Claim for Extension of Time due to problems associated with M&E commissioning". About chillers that Appendix said:-

"The roof mounted chillers were commissioned by the manufacturer's agents in December 1989 which allowed the Contractor to commence the balancing of the chilled water system. It was soon established that water volumes were low and AA instructed various investigations culminating in an instruction to re-check all previous commissioning results. This was done and confirmed that pump volumes were still only 70% of the design requirements. After one relatively minor defect had been corrected by the Contractor, attempts were made to continue with the commissioning but the results were still well below design requirements. Further investigations continued with the result that the high pressure drop was proved to be across the chillers and to be approx. double the manufacturer's specified data, the manufacturer agreed to replace all three evaporators and the first was installed at the end of August 1990. When tested on site, the pressure drop remained at its unacceptably high level and further changes were aborted. Further tests at the National Engineering Laboratory, Glasgow, in October 1990 confirmed the site findings. Resolution of all problems was not achieved until February 1991.

"It is our view that the problems associated with this installation are not the responsibility of the Contractor since the chillers were uniquely specified. That they did not achieve the specified duty cannot be laid against the Contractor and, therefore, they are entitled to an extension of time under clause 25.4.5.2, the extent of which will be dealt with in the conclusion to this Appendix."

and

"We are of the opinion that the Contractor has suffered direct loss/expense as provided for in clause 26.2.2 in connection with testing necessary to establish reasons for excessive pressure drop. It is also our opinion that the Contractor's costs associated with the necessary remedial works should be recovered directly from the manufacturer since they were not the result of any action by the Employer. In addition, the Employer is advised to seek advice regarding recovery of his additional costs under any duty which the manufacturer owed to the Employer in his reliance upon the specialist knowledge and expertise of the manufacturer."

WGI's conclusion concerning chillers was that the problems with them delayed the completion of commissioning, and also of the Works as a whole, by 20 weeks. At the end of the main text of the Claims Report, that is to say, the part before the Appendices, WGI said this:-

"There can be no doubt that performance of the Contractor on this contract has been far from satisfactory, particularly with regard to mechanical and electrical engineering services, but we have come to the conclusion that there have been matters, detailed in this report, which were not the contractor's responsibility and which delayed the contract by the full 43 weeks 2 days. A number of these were not resolved finally until many months after Practical Completion but we can only deal with matters arising under clause 25 which delay the achievement of Practical Completion. It may be thought that this clause is weighted heavily in favour of the Contractor but it must be remembered that that without it the right to Liquidated and Associated Damages would disappear if the Employer, for whatever reason, delayed the progress of the works, while the Contractor would retain his rights under the common law.

"The Revised Date for Completion will now be 22 May 1990."
The Claims Report seems to have been circulated within the Design Team and also to the Board. In a letter dated 14 August 1991 to Mr. Richard Blair of WGI Mr. Alan Massey of PMI wrote, so far as is presently material, as follows:-
"We are endeavouring to arrange dates for the meeting with the Client to consider your proposed award. We wonder if you would prefer to have a Project Team meeting in advance of that meeting so that the members could give their reactions to your report.

"It is essential that we have a full debate on the whole position with the other Consultants contributing fully. There is obvious concern that an award for a full extension of time hardly reflects the far from satisfactory performance of the Joint Venture Contractor, who has himself admitted deficiencies from time to time."

It is clear from a letter dated 23 August 1991 written by Mr. Graham Fisher of NHS Estates, an executive agency of the Department of Health, to Mr. William Bain, the Chief Executive of the Board, which was put in evidence, that concern was felt both by the Board and by the Department of Health about the proposal to grant to Taylor Woodrow a full extension of time for the completion of the Works. Mr. Fisher said in his letter:-

"Consequently, while under the terms of the contract decisions on claims fall to Watkins Gray, the Department would wish to understand, as no doubt you would, the reasoning behind a decision to grant the claimed extension of time in full."
In the event, the Board at this point decided to instruct its solicitors, Messrs. Masons, to advise it and a meeting was held on 25 October 1991 which was attended not only by representatives of WGI and PMI, but also by representatives of the Board, the Department of Health, Messrs. Masons, Messrs. Ernst & Young, the Board's accountants, NNN, the quantity surveyors appointed for the purposes of the Project, and Messrs. Austen Associates, the mechanical and electrical engineering services consultants. There were put in evidence both what purported to be a verbatim record of the meeting and notes of the meeting. The only person who gave live evidence at the trial as a witness of fact was Miss Frances Alderson, a partner in the firm of Messrs. Masons, who attended the meeting and who, according to the notes of the meeting to which I have referred, took a leading role in it. Miss Alderson, whose evidence I accept, confirmed the essential accuracy of the written records of the meeting. It is plain from the written verbatim record of the meeting that the possible significance of what Miss Alderson called "the killer chiller problem" was appreciated. It also appears from the written verbatim record that Miss Alderson appreciated that ultimately the decision whether or not to grant any further extension of time to Taylor Woodrow for completion of the Works lay exclusively with WGI, and that in consequence she was anxious not to overstep the line when putting to WGI what it could or might do. However, what is quite clear is that no-one at the meeting expressed the view that it was absurd or ridiculous even to contemplate granting an extension of time of 20 weeks on account of the problems with the chillers if it should turn out that Taylor Woodrow was not contractually responsible for the deficiencies in them. However, on a more general level, the notes did record PMI expressing concern about the grant to Taylor Woodrow of an extension of time to the date of Practical Completion as follows:-

"PMI The Client is justified in asking serious questions as the total figure is now £42 ½ million through TWC's gross mismanagement of the M&E works.

"WGI We are not handing out justice only administering contract.

"PMI They were 43 weeks late and should not their installation errors be taken into account, e.g. rip-out of services.

"WGI No, you cannot open up that question. We should not be at this meeting. We must act as quasi-arbitrators. We all have emotional feelings."

WGI's responses indicated, it seems to me, that WGI considered that the determination of whether to grant any, and, if so, what, extensions of time for the completion of the Works, was a matter for it alone. That certainly seems to have been its attitude up to this point.

The outcome of the meeting on 25 October 1991 was that it was agreed that an independent consultant would be engaged to provide an assessment of the claims of Taylor Woodrow for extensions of time based upon the circumstances in which the mechanical and electrical engineering services installation was undertaken, a matter with which I am not concerned in this judgment, and Messrs. Masons would seek the Opinion of Counsel in relation to the question of liability for the chiller problem. In the latter connection the advice of Mr. Vivian Ramsey Q.C. was sought. He advised in an Advice dated 7 February 1992, so far as is presently material, that if the chillers supplied were of good quality but unable to produce the performance required, Taylor Woodrow would be entitled to an extension of time for completion of the Works. A copy of that Advice was provided to WGI. In the event WGI produced a further version of the Claims Report dated 3 April 1992 which did not differ in any respect relevant to the matters which I have to decide from the earlier version. By a Notification of revision to Completion date dated 6 April 1992 WGI extended the date for completion of the Works to 22 May 1990.
In the meantime the Chairman of Taylor Woodrow had written to the Chairman of the Board, Sir Philip Otton. Sir Philip had evidently asked Mr. Bain, the Chief Executive, to reply on his behalf and that Mr. Bain did in a letter dated 12 December 1991, which was put in evidence. The letter included:-
"Your final submission was made some twelve months after practical completion of the building and contains in addition to a repetition of claims the architect has already considered, new claims which probably could and should have been produced by your Company earlier.

"Despite this, the Hospital has taken the decision to consider the claims now being put forward by your Company as we share your wish to avoid expensive litigation or arbitration if the matter can be discussed. However, the claims you have raised, we are advised by the architect and our solicitors, do raise several issues of law and it is necessary for us to take advice on these aspects. We can assure you that this is being attended to as quickly as possible.

"It is our intention, once we have the benefit of that advice, to contact you with a view to discussing the claims your Company has made. We would be grateful if you could confirm that our proposed course of action is acceptable to you."

I do not know whether or not discussions did take place, but, if they did, they were not successful in resolving the issues between the Board and Taylor Woodrow, for as matters turned out, as I have already recorded, arbitration proceedings were commenced by Taylor Woodrow against the Board. Those arbitration proceedings were compromised by a settlement agreement dated 19 December 1995. The present action was commenced prior to the settlement of the arbitration proceedings between the Board and Taylor Woodrow, but was not pursued pending the resolution of the arbitration proceedings.

Taylor Woodrow's Notifications of Delay

I have set out fairly extensive quotations already in this judgment from various letters written, and reports to site meetings made, by Taylor Woodrow in relation to the progress of the Works and delays allegedly affecting that progress. As I have said more than once, the only person who gave evidence as a witness of fact before me was Miss Alderson. Not having heard any witness from Taylor Woodrow, I am anxious not to be unfair to that company. However, I have the distinct impression from the documentation to which I have referred that the approach adopted by Taylor Woodrow on the Project was, every time anything altered or anything happened which could conceivably delay any individual activity, Taylor Woodrow gave a written notification of delay to the completion of the Works, regardless of whether it really thought that the alteration or the occurrence would cause delay to the completion of the Works. While, from a contractor's point of view, adopting such a practice may have the advantage that he is covered, no matter how things should turn out, it does make life needlessly difficult for those seeking to administer the contract. In addition, I have the impression that, for whatever reason, Taylor Woodrow made exceptionally pessimistic predictions of the extent of the likely delay caused by the matters which it notified. I can only guess as to why Taylor Woodrow did this, but it may well be that it hoped to create an impression of taking exceptional measures to overcome the exaggerated delays and thereby to build up a fund of goodwill such that the Board might decide not to claim liquidated damages in respect of the failure of Taylor Woodrow to complete the Works in accordance with the provisions of the Main Contract as to time, or perhaps even to lay the foundation for claiming extra payment for overcoming the exaggerated delays. What certainly is difficult to understand from Taylor Woodrow's reports of delays during 1989 is how they can be reconciled with the repeated, confident assertions that the Works would be completed by mid-February 1990. In the result, I do not feel that I can treat any expression of view by Taylor Woodrow during 1989 or 1990 as to what had caused delay to the progress of the Works, or as to how much delay had been caused as reliable or even a genuine expression of opinion. I do not even consider that I should regard the Target Programme as setting out the best that Taylor Woodrow thought it could do, as at February 1989, to recover lost time. I think that it is unlikely that Taylor Woodrow set itself up to fail, and, given my view as to Taylor Woodrow trying to impress the Board as a contractor which had taken exceptional measures to overcome adversity, I think it quite likely that Taylor Woodrow actually thought until quite late in the Project that it would be able to complete the Works rather earlier than mid-February 1990. Thus it seems to me that when PMI reported in March and April 1989 that Taylor Woodrow actually was aiming to complete the Works prior to Christmas 1989, that probably did represent Taylor Woodrow's intention at that time. The intention to complete the execution of the Works earlier than indicated on the Target Programme is also confirmed, as it seems to me, by the fact that Taylor Woodrow actually commenced the execution of the wall and floor finishes operations significantly earlier than was shown on the Target Programme.

The case against WGI – General Points

Much stress was placed during this sub-trial upon the point that, according to Taylor Woodrow's own progress report, the Works were 41 weeks behind the Original Programme as at the date upon which the Target Programme was introduced in February 1989 and the Works were 43 weeks and 2 days behind the Original Programme as at the date of issue of the Certificate of Practical Completion on 22 May 1990. The superficial analysis was that Taylor Woodrow had merely failed to recover any of the time which had been lost up to February 1989. Certainly that was the approach which, as I have already explained, Mr. Gibson adopted. Again as I have already explained, that approach ignored the production of the Target Programme and any consideration of what actually happened between February 1989 and 22 May 1990. A slightly more refined analysis urged upon me on behalf of the Claimant involved noticing that extensions of time totalling 35 weeks were granted in respect of the CHW Ground, the Hydrotite Ground, the Safety Cabinet Ground and the Commissioning Ground, all matters occurring after February 1989, yet, as compared with what the Target Programme anticipated, the time lost between February 1989 and 22 May 1990 was only 13 weeks. I was urged to conclude that WGI must have been negligent in awarding extensions of time totalling 35 weeks if there were only 13 weeks time lost. The validity of the point depends, in my judgment, upon the assumption that it was either not open to Taylor Woodrow to seek to improve upon the Target Programme, or that, as a practical matter, it was impossible for Taylor Woodrow to do so. For the reasons which I have given above I do not consider that assumption to be a proper one to make. Nonetheless, it does seem remarkable that such apparently generous extensions of time were granted, not least because, as I have recorded already in this judgment, not only PMI, but also WGI, made criticisms of the performance of Taylor Woodrow during and after the Project. While, therefore, I think that it would be wrong to approach the issues in this sub-trial on the basis that there was any sort of onus upon WGI or PMI to justify the extensions of time granted, it does seem to me to be appropriate to consider with a degree of scepticism the picture presented by the documents upon which, in the light of my findings about the various expert witnesses who gave evidence before me, the case of the Claimant depends.

The Case against WGI – the CHW Ground

The way in which the Claimant put its case in relation to the extensions of time granted on the CHW Ground was, quite simply, that it was clear on the documentary evidence before me that the late giving of possession of part of the site of the Chelsea Hospital for Women did not cause any delay to the completion of the Works because Taylor Woodrow was already so far behind that it was not ready to do any work on that part of the site any earlier than the date upon which full possession was given. I do not think that it was seriously suggested on behalf of WGI that Taylor Woodrow was in fact delayed in completing the Works by full possession of the site of the Chelsea Hospital for Women being given later than contemplated in the Original Programme. Certainly the evidence put before me indicated to my satisfaction that there was no such delay. The justification for the grant of extensions of time totalling 11 weeks which was principally relied upon on behalf of WGI was really a legal one, namely that as a matter of law it is at least arguable that if a contractor is denied access to part of the site upon which he is to undertake building work for a period of time, since he is to have the whole of the period for which the contract provides to do the work he must be granted an extension of time equivalent to the period for which he was denied access. The point was not really argued before me, and I express no concluded view about it, but I am bound to say that as a matter of impression I have considerable doubts as to whether it is a correct analysis of the position, at least in a case in which the relations between the parties are governed by a contract in the Standard Form. Under the Standard Form clause 25.4.12 specifically provides for the grant of an extension of time if there has been a failure on the part of the employer to give in due time access to the site of the works or any part thereof, but only if the progress of the works has thereby been delayed. It would seem to follow that if there has been a failure on the part of the employer to give in due time access to the site of the works or any part thereof, but it has not caused any delay to the progress of the works, the contractor is not entitled to any extension of time. However that may be, both Mr. Gibson and Mr. Adams in cross-examination said that there was, to his knowledge, a body of opinion among those who have to make decisions as to whether to grant extensions of time to contractors in respect of the failure of employers to afford access to building sites that there was an automatic entitlement in such circumstances. In his closing submissions Mr. Edwards-Stuart urged me to disregard this evidence as it was not that of an architect. It is true that the evidence was not that of an architect, but I think that it would be wrong to disregard it. Mr. Gibson and Mr. Adams are both professional men working in the construction industry in capacities which require them to be familiar with the practices of those who make decisions about the grant of extensions of time to contractors employed on the terms of the Standard Form. The opinion of which each of them said he was aware as being held by a body of persons is canvassed in some of the leading legal text books in this area of the law. The fact that, on the evidence, WGI also subscribed to that opinion, at least in 1989, was not, in my judgment, negligent. The criticism of the grant of extensions of time on the CHW Ground therefore fails.
Even if I had found that the criticisms of WGI for granting extensions of time on the CHW Ground succeeded, I should have found that, on the facts, no loss had been caused to the Board or to the Claimant by reason of the grant of those extensions of time. I reach that conclusion because, but for the grant of extensions of time on the CHW Ground, it is plain on the evidence that WGI would have granted extensions of time totalling 18 weeks which on the evidence before me could not be said not to have been justified. The evidence that WGI would have granted such extensions of time is to be found in WGI's letter dated 23 October 1989 to PMI, to which I have referred above. Of the total extensions, 9 weeks related to the late issue of co-ordinated mechanical and electrical services drawings, and it was accepted on behalf of the Claimant that the grant of an extension of time of 9 weeks could not be criticised. It was also accepted on behalf of the Claimant by Mr. Edwards-Stuart in his oral closing submissions that WGI and PMI were entitled, if necessary, to say that, as no criticism was made of the grant of the extension of time in relation to late issue of co-ordinated mechanical and electrical services drawings, they could, as it were, set off against any extension wrongly granted on the CHW Ground, the length of the extension which could properly have been granted on the ground that drawings had been issued late. For reasons which I did not understand, Mr. Edwards-Stuart put the length of the extension which could be set off in this way at 7 weeks rather than the 9 weeks to which the letter of 23 October 1989 referred. For the reasons which I set out later in this judgment, it seems to me that the grant of an extension of 5 weeks on the Hydrotite Ground also mentioned in the letter dated 23 October 1989 cannot be criticised either. Consequently, on any view the concurrent extensions of time contemplated by the letter dated 23 October 1989 which cannot be criticised and which can be set off against any wrong grant on the CHW Ground exceed the 11 week extension in total granted on the CHW Ground. The balance of 4 weeks extension contemplated in the letter dated 23 October 1989 related to what was called in the jargon of the sub-trial "reinforcement and vaults". Although it was pleaded in the Re-Amended Statement of Claim that an extension of time in respect of reinforcement and vaults was not correct, it was not sought on behalf of the Claimant at this sub-trial to prove that no extension of time in relation to reinforcement and vaults was justified. Mr. Edwards-Stuart adopted the position that, as no extension of time had in fact been granted in respect of reinforcement and vaults, it was not necessary for the Claimant to lead evidence in relation to that question. Mr. Taverner and Mr. Williamson, on the other hand, submitted right from the opening of their clients' respective cases, that WGI and PMI were entitled to rely, if necessary, upon the fact that an extension of time of 4 weeks for reinforcement and vaults would have been granted but for the grant of the extensions of time granted on the CHW Ground, and there was no evidence to show that if such an extension had been granted it would have been incorrect. Mr. Edwards-Stuart submitted that that point was not open to WGI and PMI on the pleadings, as, if reliance was to be placed on the possibility of a proper grant of an extension of time of 4 weeks on account of reinforcement and vaults, that needed to be pleaded. In the circumstances the question whether WGI and PMI can rely upon the contemplated extension is not vital. However, as I have already pointed out, one of the matters to be dealt with in this sub-trial is causation, in other words, it is necessary for the Claimant to satisfy me in relation to any criticism of either WGI or PMI which I find to be justified that the Board or the Claimant has suffered at least some loss in consequence, although the detailed assessment of the quantum of damages is for another occasion. It was, accordingly necessary for the Claimant to satisfy me in this sub-trial that the grant of extensions of time on the CHW Ground caused it or the Board loss. That, it seems to me, involved the Claimant in the need to demonstrate that the grounds alternative to the CHW Ground set out in WGI's letter dated 23 October 1989 to PMI upon which the extensions of time in fact granted on the CHW Ground might have been justified were incorrect. As I have already pointed out, so far as the late issue of drawings was concerned, it was accepted that WGI and PMI were, if necessary, entitled to rely on the possibility of a proper concurrent grant of an extension of time. It was therefore for the Claimant to show that no extension of time in relation to reinforcement and vaults could have been justified, not for WGI and PMI to prove that such an extension could have been justified. That said, it would certainly have been helpful if the point had been raised clearly in the pleadings served on behalf of WGI and PMI. I should be reluctant to decide this question of whether or not it is open to WGI and PMI to rely upon the possibility of the grant of a 4 week extension of time for completion of the Works in respect of reinforcement and vaults simply as a matter of pleading. A consideration of the documentary material before me clearly raises the issue of the significance of WGI's letter dated 23 October 1989 to PMI and the point was plainly taken by Mr. Taverner and by Mr. Williamson in their respective openings. The Claimant has had an adequate opportunity to lead evidence on the question if it wished to do so. In the end the position adopted on behalf of the Claimant was to stand on the pleading point on which I find it fails.

The Case against WGI – the Hydrotite Ground

I find that the reasoning behind the decisions of WGI to grant the two extensions of time which it did on the Hydrotite Ground was set out in WGI's letter dated 17 November 1989 to PMI. What WGI did, it seems to me, was to recognise that the instruction to lay Hydrotite introduced into the programmed operation of "Wall and Floor Finishes" at each level in the new hospital building a further element, namely the laying of a damp proof membrane, and then to consider what effect the introduction of that element had on the programmed operation. Mr. Edwards-Stuart criticised that approach, emphasising that, for an extension of time to be appropriate, there had to be delay to the completion of the Works as a whole, not simply delay to a particular component of the Works. The latter submission is, in my judgment, well-founded, but, depending upon the precise circumstances, it is obviously possible for the progress of the Works as a whole to be delayed by exactly the same period as a particular operation is delayed, if that operation is critical to the completion of the Works. Consequently, it is not self-evidently wrong to grant an extension of time for the completion of the Works which coincides precisely with the period of delay to a particular operation. One needs, therefore, to consider exactly what were the circumstances prevailing at the times at which WGI granted each of the extensions of time which it did on the Hydrotite Ground.
The first extension of time granted on the Hydrotite Ground was granted on 19 October 1989, giving effect to a decision made on 12 October 1989 in response to an application for an extension of time made on 11 October 1989. At the site meeting held on 10 October 1989 Taylor Woodrow had reported that "Sheet Flooring" was 68% complete. As at that date WGI knew, from the report made by Taylor Woodrow to the site meeting held on 11 July 1989, that flooring operations had commenced on 19 June 1989, with the laying of Hydrotite starting on 3 July. It therefore appeared that, 16 weeks after a start had been made on "Wall and Floor Finishes", the flooring element, at least, was only two-thirds complete. On a straight line projection, therefore, one might have expected that the flooring would be completed within a further 8 weeks or so, that is to say, by the end of Week 145, the week beginning 4 December 1989. If that was what happened, the operation "Wall and Floor Finishes" would have taken 24 weeks. WGI knew from the Target Programme that Taylor Woodrow's declared intention had been to start "Wall and Floor Finishes" on 7 August 1989, so that operations had actually commenced earlier than programmed. According to the Target Programme, "Wall and Floor Finishes" was to be completed by the end of Week 146, the week beginning 11 December 1989. The period allowed on the Target Programme for "Wall and Floor Finishes" was a total of 19 weeks. That operation comprised, of course, more than just the laying of Hydrotite. If one takes the commencement of flooring on 19 June 1989 as being the start of "Wall and Floor Finishes", a period of 19 weeks reckoned from that date would have expired on 29 October 1989, at the end of Week 139, which was 7 weeks earlier than the date for completion of "Wall and Floor Finishes" as indicated on the Target Programme. The fact that Taylor Woodrow actually started "Wall and Floor Finishes" 7 weeks earlier than shown on the Target Programme possibly suggests that it was hoping to make up time on that operation and complete it in less than the 19 weeks shown on the Target Programme. Certainly the programme enclosed with Taylor Woodrow's letter dated 11 October 1989, if the parties have interpreted it correctly, indicated an intention to complete "Wall and Floor Finishes" by the end of Week 133, being the week beginning 11 September 1989, 16 weeks after a start made at the beginning of Week 118, the week beginning 29 June 1989, so far as Levels 2 to 6 were concerned. The programme enclosed with Taylor Woodrow's letter dated 11 October 1989 did not deal with Level 1, no doubt because the instruction to lay Hydrotite was only given in relation to the Levels other than Level 1. In WGI's letter dated 17 November 1989 to PMI WGI said that at the time of the grant of the first extension of time on the Hydrotite Ground
"we concluded that, based on progress on floor coverings [the laying of the flooring] could reasonably have been completed by the end of week 138 rather than week 133 as indicated on the target completion programme"

It is not, and has never been, in dispute that the activity "Wall and Floor Finishes" was on the critical path of the Works as a whole. The issue, so far as the Claimant is concerned, has been, quite simply, whether the extensions of time granted by WGI were of excessive length. Having rejected the evidence of Mr. Luder that the maximum permissible extension of time was a total of 2-3 weeks, what I have to consider, in relation to the first extension of time granted on the Hydrotite Ground, is whether, bearing in mind that at that time the laying of flooring had not been completed and would not be completed for some time, and bearing in mind that Mr. Edwards-Stuart accepted, as I think rightly, that an extension of time could be justified if a contractor was prevented from recovering lost time by the occurrence of a Relevant Event, it was plainly wrong to grant an extension of time of 5 weeks. I am not satisfied that such an assessment was one that no reasonably competent architect could have made. It follows that the complaint in respect of the grant of the first extension of time on the Hydrotite Ground fails. In reaching that conclusion I do not leave out of account the fact that at the time the first extension of time was granted on the Hydrotite Ground Taylor Woodrow was still expressing confidence that the Works could be completed by mid-February 1990. If that expression of confidence was taken at face value, no extension of time at all on the Hydrotite Ground was justified as at 19 October 1989 and, in my judgment, it would have been negligent to have granted one. However, it seems to me that an architect must exercise his or her own judgment as to how realistic or otherwise such expressions of confidence are: he or she does not have to accept what the contractor says, even if the contractor is predicting that there will be no delay. I am not convinced that WGI actually did consider and reject as unduly optimistic Taylor Woodrow's prediction, but as the Claimant's case implicitly is founded upon an acceptance that a reasonably competent architect could have disregarded Taylor Woodrow's optimism as to completion being achieved by mid-February 1990, I think that it would be wrong for me, as I might otherwise be inclined, to hold that it was negligent to have failed to take account of Taylor Woodrow's professed beliefs as to when completion would in fact occur.
By the time WGI came to grant the second extension of time on the Hydrotite Ground on 24 November 1989 the laying of the flooring was complete, or virtually complete. WGI therefore knew that in fact the flooring operation had taken, notwithstanding what seemed likely when the first extension of time on the Hydrotite Ground had been granted, 23 weeks, from the start of the laying of marmoleum flooring on 19 June until 24 November 1989, in Week 143. The operation had been completed about 3 weeks earlier than the date shown on the Target Programme. WGI's letter dated 17 November 1989 made it clear, as it seems to me, that WGI's decision to grant a further extension of time on the Hydrotite Ground was prompted simply by the fact that at the time of the grant of the previous extension of time it had anticipated that "Wall and Floor Finishes" would be completed by the end of Week 133. On this occasion it is plain from WGI's letter dated 4 December 1989 that its view was that it was possible that, as Taylor Woodrow asserted, the Works could be completed by 22 February 1990. In other words, had WGI directed its mind, when considering the question whether to grant a second extension of time on the Hydrotite Ground, to the issue whether the progress of the Works, as opposed to the activity "Wall and Floor Finishes", had been further delayed since the grant of the first extension of time on the Hydrotite Ground, it could only have concluded that it had not. It is thus, in my judgment, clear that in relation to the second grant of an extension of time on the Hydrotite Ground WGI negligently failed to direct its mind to the correct issue, and, if it had directed its mind to the correct issue, it could only have concluded that no further extension of time was appropriate. I appreciate that the distinction which I am drawing between the first and the second extensions of time granted on the Hydrotite Ground may appear rather artificial, and I do not pretend that it is intellectually very satisfactory, but I think that, once it is accepted, as implicitly is the case in how the Claimant puts its complaints in relation to the extensions of time granted on the Hydrotite Ground, that despite evidence, in the form of Taylor Woodrow's predictions as at 10 October 1989 that the Works would be completed by mid-February 1990, that the instruction to lay Hydrotite in fact did not cause any delay to the progress of the Works, a reasonably competent architect could have taken the view critical delay had been caused, the only criticism which can survive in relation to the grant of the first extension of time on the Hydrotite Ground concerns the length of the extension granted.
As I have recorded as part of the narrative in relation to the extensions of time granted on the Hydrotite Ground, so far as the grant of the second extension of time of 7 weeks is concerned, WGI's assessment actually was that the delay caused by the instruction to lay Hydrotite was 5 weeks more than its original evaluation, but that brought one into the period of the construction industry 2 week Christmas shut-down, so a further grant of two weeks was appropriate. The taking into account of industry shut-downs in assessing the periods of extensions of time is common practice. Had the 1989 Christmas shut-down not been taken into account in the grant of the second extension of time granted on the Hydrotite Ground, it would, I think, plainly have been taken into account in the grant of any extension of time which took the date for completion of the Works past Christmas 1989. For the reasons set out later in this judgment, I find that a reasonably competent architect could properly have granted extensions of time which would have resulted in the date for completion of the Works being fixed at a time after Christmas 1989. Consequently, in my judgment, the result of WGI negligently granting the second extension of time on the Hydrotite Ground is that an unjustified extension of time of 5 weeks was made.

The Case against WGI – the Safety Cabinet Ground

The focus of the Claimant's case so far as the extensions of time granted on the Safety Cabinet Ground is concerned was the contention that safety cabinets were not on the critical path and therefore could not have caused delay to the completion of the Works as a whole. It was also asserted that WGI made its assessment of the period of the appropriate extensions simply by reference to the delay to the completion of the safety cabinets themselves, rather than by a consideration of the delay caused to the completion of the Works, and in any event granted extensions of time which were excessive. There was actually no evidence that the safety cabinets were not on the critical path. Mr. Luder, at paragraph 4.61 (4) of his report, recorded that he had been told to assume that the works to the benches upon which the safety cabinets stood "were not critical to the progress of the works as a whole.". I have to say that I do not think that it is obvious, just as a matter of common sense, whether the safety cabinets were on the critical path or not. The work the subject of the relevant instructions was a late variation, ordered a month after the date as at which, according to the Target Programme, the Works should have been completed. Ultimately it is the last operation which needs to be carried out on a construction site before it is possible to say that the works are practically complete which is on the critical path, no matter how insignificant in itself. Therefore, subject to any point which can properly be made as to insignificance, fixing the last door handle is on the critical path. While there was evidence from the documentation put before me that commissioning, to which I refer below, was going at the same time as the work to the benches upon which the safety cabinets stood, that does not, of itself, mean that the safety cabinets were not on the critical path. In the absence of clear evidence that the safety cabinets were not on the critical path, I do not feel able to conclude that no reasonably competent architect could possibly have thought that they were.
If, as it seems to me I must assume for the purposes of the remainder of my consideration of the grant of the extensions of time on the Safety Cabinet Ground, the safety cabinets were arguably on the critical path, then, since the work which was ordered was the subject of instructions so late in the progress of the Works, it is more rather than less likely that the delay caused to the progress of the Works as a whole by the need to comply with the instructions was the time taken to do the work which had been instructed. As I have already indicated above, the evidence suggests that the modification work took no more than 3 weeks and may have taken as little as one week. However, WGI considered that there was a need for the safety cabinets to be re-commissioned after the modification work had been carried out. Messrs. Austen Associates indicated to WGI that this re-commissioning, in their view, amounted to little or nothing, but WGI did not accept that view. I am not in a position to say who, as between WGI and Messrs. Austen Associates, is correct. In the result, it has not been proved to my satisfaction that no reasonably competent architect could possibly have considered that the progress of the Works had been delayed by the instructions to modify the benches upon which the safety cabinets stood by 3 weeks.

The Case against WGI – the Commissioning Ground

It is not in dispute that some extension of time on the Commissioning Ground was appropriate. I do not think that it was ultimately in dispute that the problem with the chillers, to which I have referred above, continued to delay the completion of the Works until Practical Completion was certified as having taken place on 22 May 1990. The issue was what was the appropriate length of the extension of time, or rather, whether any reasonably competent architect could possibly have considered that it was as long as 8 weeks. The Claimant's case initially was based upon the assumption that commissioning had actually been completed on 6 April 1990, as shown in the report of the single joint expert, Mr. Barry, in his as-built programme – see, for example, paragraph 4.68 of the report of Mr. Luder. On that basis it was said that an extension of time of 2 or 3 weeks was the most that a reasonably competent architect could have awarded. However, as I have already pointed out, Mr. Barry was mistaken in taking the date of 6 April rather than the date 22 May 1990. A glib answer to the Claimant's case in relation to the extension of time granted by WGI in respect of commissioning would be to add to the extension of time of 2-3 weeks thought to be appropriate if commissioning had been completed on 6 April 1990 6 ½ weeks to take completion of commissioning to the correct date. Although it is a glib answer, it seems to me that it is a sufficient one. In his closing submissions Mr. Edwards-Stuart developed some interesting arguments directed at whether it was reasonable for WGI to consider that the chiller problem had an impact from December 1989, but in the event none of this mattered, as it seemed to me, for the extension in fact granted was 8 weeks and I think that all I have to consider is whether any reasonably competent architect could have granted an extension of that length. More promisingly, Mr. Edwards-Stuart submitted, in effect, that when coming to consider whether to grant an extension of time which would have the consequence of relieving Taylor Woodrow of any responsibility for the failure to complete the Works any earlier than 22 May 1990 WGI should have given attention to the question of the performance of Taylor Woodrow and concluded that some responsibility for delay should rest with Taylor Woodrow. It is, as I have already remarked, striking that Taylor Woodrow was granted extensions of time which ran until 22 May 1990. However, if Taylor Woodrow was delayed in completing the Works both by matters for which it bore the contractual risk and by Relevant Events, within the meaning of that term in the Standard Form, in the light of the authorities to which I have referred, it would be entitled to extensions of time by reason of the occurrence of the Relevant Events notwithstanding its own defaults. Unless the Claimant can point to plain error on the part of WGI in failing to take into account something which it ought to have taken into account it seems to me that the point urged upon me by Mr. Edwards-Stuart goes nowhere.

Conclusion in relation to WGI

For the reasons which I have set out above, it seems to me that WGI was negligent in relation to the grant of the second extension of time, amounting to 5 weeks, on the Hydrotite Ground, but that otherwise the allegations of negligence against WGI in respect of the grant of extensions of time are not proven.

The Case against PMI

The case against PMI depends upon the case against WGI in the sense that, unless WGI has been proved to have been negligent in the decisions which it made to grant extensions of time to Taylor Woodrow, there can, logically, be no question of PMI being in breach of duty to the Board in failing to seek to prevent WGI committing the errors which led to the grant of extensions of time negligently. However, the fact that WGI was negligent, as I have found, to an extent it was, does not, in my judgment, lead inevitably to the conclusion that PMI is also liable to the Claimant. Whether PMI is liable to the Claimant, in my view, depends, first, upon a consideration of what, under the terms of the PMI Retainer, PMI agreed to do for the Board.
It was accepted by Mr. Edwards-Stuart on behalf of the Claimant that there was no express term of the PMI Retainer which obliged PMI to check the assessments of WGI as to any causes of delay to the progress of the Works or itself to make assessments of extensions of time or otherwise to interfere in the process of adjudicating upon applications for extensions of time made by Taylor Woodrow. Rather the way in which the case against PMI was put was that proper performance of the somewhat vague obligations set out in the paragraphs of the PMI Retainer quoted at paragraph 7 of this judgment required PMI to obtain information and to make assessments as to the progress of the Works which would have enabled PMI to see that, in relation to the extensions of time which it was alleged had been granted negligently, WGI was about to fall into error, and PMI should then have spoken out, and, if it had done so, WGI would have taken notice and would not have granted the relevant extensions of time, or at least there was a real or substantial, as opposed to a speculative, chance that WGI would not have granted those extensions of time. Mr. Edwards-Stuart laid particular emphasis upon the provisions of paragraph 5.18 of CAPRICODE as requiring PMI to evaluate claims.
It seems to me that the Claimant's case against PMI is based upon fundamental misconceptions as to the nature of the obligations of PMI under the PMI Retainer. It is clear, as it seems to me, that PMI's role in relation to the consideration by WGI of applications for extensions of time or the making by WGI independently of some assessment of whether to grant an extension of time, was, essentially, to try to make sure that WGI dealt with such applications or assessments within a reasonable time. The actual decisions were for WGI to make and the project management function was to seek to ensure that the decision making process operated smoothly. No doubt, if asked, or perhaps even without being asked, it was appropriate for PMI to bring to the notice of WGI any information which PMI thought WGI might not have which was relevant to the decisions which WGI had to make. Certainly if asked, it would have been proper for PMI to express an opinion about any matter in respect of which WGI wished to have the benefit of PMI's opinion. What was no part of PMI' s function under the PMI Retainer, in my judgment, was to oversee, or to second guess, the evaluations made by WGI. For what it is worth, paragraph 5.18 of CAPRICODE specifically warned against seeking to influence the decisions of Supervising Officers, such as architects, in relation to the assessment of claims.
In fact, in my judgment, the provisions of CAPRICODE were not incorporated into the PMI Retainer. Mr. Edwards-Stuart submitted the requirement in paragraph 11(c) of the PMI Retainer
"to ensure that the procedures laid down by the DHSS are followed"

had that effect, but it seems to me that, read in its context, that reference was to following the procedures of the DHSS in relation to design options. However, even if the provisions of CAPRICODE were incorporated into the PMI Retainer, it does not seem to me that paragraph 5.18 itself was concerned with claims for extensions of time as such, but rather with financial claims. Thus if there were a claim for an extension of time on its own, without a claim to be paid more money, I do not think that paragraph 5.18 of CAPRICODE was relevant.
Whether or not my view of the nature and scope of the obligations of PMI under the PMI Retainer is correct, what I consider to be clear beyond argument on the documentary material put before me, is that, whatever PMI had said to WGI about any particular proposed grant of an extension of time would have made no difference to WGI's eventual decision. When PMI expressed surprise at the grant of an extension of time of 10 weeks on the CHW Ground, WGI proceeded to grant a further week on exactly the same ground. WGI did not accept PMI's opinion expressed in Capricode Report No. 10 that the expected date of Practical Completion was May 1990. When PMI sought to question whether an extension of time of a total of 3 weeks was appropriate on the Safety Cabinet Ground WGI gave reasons for its view, but did not alter its opinion. Despite a long and detailed consideration by all those involved in the Project on behalf of the Board, including the Board's solicitors, WGI remained unmoved in relation to the propriety of granting a final extension of time on the Commissioning Ground to bring the date for completion under the Main Contract to 22 May 1990.
It is probably unnecessary in the circumstances to comment on the individual allegations made against PMI in respect of particular grants of extension of time. Nonetheless, for completeness, it might be helpful for me to indicate that in my view PMI could reasonably have supposed from the terms of the enclosure to WGI's letter to it dated 10 July 1989 that the grant of an extension of time on the CHW Ground was still under consideration by WGI and that a final decision would not be made without a further notification to PMI. The possible grant of the first extension of time on the Hydrotite Ground was discussed at a meeting attended by representatives of WGI, PMI NNN and Messrs. Austen Associates on 12 October 1989 at which it appears, since WGI was anxious to minute the eventual decision as collegiate, those present expressed views which to an extent differed from those of WGI. PMI also expressed dissentient views in relation to both the proposed grant of the second extension of time on the Safety Cabinet Ground (no allegation being pursued against PMI in relation to the first grant of an extension of time on the Safety Cabinet Ground) and the Commissioning Ground, the latter quite forcefully at the meeting on 25 October 1991. If, therefore, I had been persuaded that PMI did owe obligations to the Board of the nature for which Mr. Edwards-Stuart contended, I should have held that it had performed them in respect of the second grant of an extension of time on the CHW Ground, and was excused from performing them in relation to the first grant of an extension of time on that ground, that it had performed them in relation to the second grant of an extension of time on the Safety Cabinet Ground, no claim being pursued against PMI in respect of the first grant of an extension of time on that ground, and that it had performed them in relation to the grant of an extension of time on the Commissioning Ground. It may also, the evidence is unclear, have performed them in relation to the first grant of an extension of time on the Hydrotite Ground.

Conclusion in relation to PMI

For the reasons which I have set out, the claims against PMI in relation to the grant of extensions of time all fail.