England and Wales High Court (Technology and Construction Court) Decisions

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

		St. Dunstan’s House, 133-137, Fetter Lane, London, EC4A 1HD
		1 July 2002

HANDING DOWN


 


H.H. Judge Richard Seymour Q. C. :

Introduction

1. The freehold owner of the property known as and situate at Lomond House, 9 George Square, Glasgow (“the Property”) is Co-operative Insurance Society Ltd. (“CIS”). By an agreement in writing dated 1 September 1995 (“the Contract”) and made between CIS and Henry Boot Scotland Ltd. (“Boot”) Boot agreed to undertake for CIS the works described in the Contract as “demolition (including façade retention), design and reconstruction at and of Lomond House, 9 George Square, Glasgow.” In the Contract the works so described were called “the Works”, and I shall use that expression in the same sense in this judgment. CIS is the Claimant in this action and Boot is the First Defendant.
2. Boot is a subsidiary of Henry Boot Plc, a company formerly called Henry Boot and Sons Plc. Henry Boot Plc is the Second Defendant in this action, but for the purposes of this judgment it is unnecessary to make any further reference to it.
3. Crouch Hogg Waterman Ltd. (“CHW”) carries on business as consulting engineers. CHW was engaged by CIS to act as consulting engineers in connection with the execution of the Works. It is the Third Defendant in this action.
4. On 13 - 14 March 1996, during the execution of the Works, water and soil flooded into sub-basement excavations. One of the claims made in this action by CIS relates to the alleged consequences of that occurrence. In connection with that claim it has been agreed by the parties, and ordered by me, that certain preliminary issues should be tried relating to the contractual position as between CIS and Boot. There are a fair number of issues, but they all raise questions of construction of the Contract. I shall consider the issues in turn, but the main focus of one of the most important of the issues is whether a report dated April 1994 entitled “Co-operative Insurance Society Ltd. Crouch Hogg Waterman Report on site investigation at Lomond House, George Square, Glasgow” prepared by Terra Tek Ltd. (“the Terra Tek Report”) was incorporated into the Contract, and, if so, what were the consequences of such incorporation. Although the preliminary issues arise directly only between CIS and Boot, I have received submissions in relation to them not only from Mr. Peter Coulson Q.C. on behalf of CIS and Mr. Nicholas Baatz Q.C. and Miss Chantal-Aimee Doerries on behalf of Boot, but also from Mr. Martin Bowdery Q.C. on behalf of CHW. Broadly speaking, Mr. Bowdery supported the position of Mr. Coulson in relation to the issues. This was unsurprising as CIS has made claims against both Boot and CHW in respect of the occurrence on 13 - 14 March 1996, and each of Boot and CHW has adopted the position that contractually the other is at least primarily responsible to CIS for the consequences of the occurrence.

The relevant terms of the Contract

5. The operative part of the Contract was very short. It simply provided that the agreement between CIS and Boot:-

“INCORPORATES the Joint Contracts Tribunal Standard Form of Building Contract, 1980 Edition, Private with Quantities, incorporating therein Amendments 1, 2 and 4 to 13 and Amendments 14 (as corrected) and TC/94 annexed hereto, amended by the Contractor’s Designed Portion Supplement 1981 Edition revised July 1994, which is also annexed hereto and as further amended and supplemented by the provisions of the Schedule, and provided that for the avoidance of doubt the provisions of the Schedule shall prevail in the event of conflict with the provisions of any of the other documents hereinbefore mentioned.”

6. The greater part of the Schedule to the Contract set out how blanks in the Joint Contracts Tribunal Standard Form of Building Contract, 1980 Edition, incorporating Amendments 1, 2 and 4 to 13, Amendment 14 (as corrected) and TC/94, amended by the Contractor’s Designed Portion Supplement 1981 Edition revised July 1994 (to which form of contract as so amended I shall refer in this judgment as “the JCT Form”) should be completed and what further amendments should be made to it. The terms of the JCT Form as so amended which are relevant to the preliminary issues are set out below
7. In the Schedule to the Contract “the Contractor’s Designed Portion” was said to consist, amongst other things, of

“(i) Earthwork support to sub-basement excavations.

(ii) Bored bearing piles to foundations and contiguous bored pile walls.

(iii) Temporary propping to contiguous bored pile walls.

(iv) Temporary supports and propping to walls of adjoining properties and to the retained retaining walls next to the footpaths at George Square and Hanover Street.”

8. The definition of the expression “the Contract Documents” for the purposes of the Contract was:-

“the Contract Drawings, the Contract Bills, the Employer’s Requirements, the Contractor’s Proposals, the CDP Analysis, the Articles of Agreement and the Conditions, the Appendix and the Supplementary Appendix”.

9. The “Contract Drawings” were listed in the Schedule to the Contract and included drawings numbered 92/G/3492/S1 (“Drawing S1”), 92/G/3492/A301A (“Drawing A301A”) and 92/G/3492/A303 (“Drawing A303”). Drawing S1 was entitled “Borehole Location Plan” and showed, as I understand it, the locations of the boreholes drilled by Terra Tek Ltd. the results of which were recorded in the Terra Tek Report. Drawing S1 did not itself refer to the Terra Tek Report. Drawing A301A was not a drawing in the conventional sense at all, but a list of notes described as “General Concrete Notes”. Of these note 5 read, “For prevailing ground conditions refer to site investigation report dated April 1994 by Terra Tek”. Drawing A303 was also not a drawing in the conventional sense, but a list of notes described as “General Piling Notes”. Note 4 stated that “Piling Design and Specification based upon Site Investigation Report dated April 1994 …by Terra Tek Limited”.
10. The “Contract Bills” included Bill No. 1 entitled “Preliminaries/General Conditions”. Section A11 dealt with “Drawings”. Item 130 in that Section provided that “THE BILLS OF QUANTITIES have been prepared from the tender drawings.”
11. Section A12 of Bill No. 1 was entitled “The Site/Existing Buildings”. Item 171 in that Section stated that “SITE INVESTIGATION: A report is included with the tender documents.”
12. Section A13 of Bill No. 1 set out a “DESCRIPTION OF THE WORK” which included:-

“The work contained in this contract comprises the demolition of an existing steel framed building and the erection of a new office building with a total floor area of about 102,000 square feet, on twelve levels.

The new building will be constructed within the existing stone façade walls to the George Square and Hanover Street elevations, and within the adjoining walls of two existing properties.

The construction of the new building is a reinforced concrete frame with suspended concrete floor slabs.

A new sub-basement, having bored-pile walls along three sides, is to be excavated and formed below the existing basement level.

The new external wall to the west facing elevation, will be built in natural stonework to the same detail as the existing retained façade walls…”

13. Section A20 of Bill No. 1 gave details of the Contract, including of what “the Contractor’s Designed Portion” was to consist. The details given at Item 130 under the heading “Second Recital” were identical to those set out in the Schedule to the Contract.
14. Section A30 of Bill No. 1 was entitled “Employer’s Requirements: Tendering/Subletting/Supply”. It included, as item 250:-

“PRICING OF BILLS: Alterations and qualifications to the Bills of Quantities must not be made by the Contractor without consent of the Quantity Surveyor. Tenders containing such alterations or qualifications may be rejected. Costs relating to items which are not priced will be deemed to have been included elsewhere in the Bills of Quantities.”

15. Section A34 of Bill No. 1 concerned “Employer’s Requirements: Security/Safety/ Protection”. Item 120 in that Section was:-

“STABILITY: Accept responsibility for the stability and structural integrity of the Works during the Contract, and support as necessary. Prevent overloading: details of design loads may be obtained from the Architect.”

16. Section A44 of Bill No. 1 was entitled “Contractor’s General Cost Items: Temporary Works”. The text of that item was:-

“ADDITIONAL TEMPORARY WORKS ITEMS: Insert below further cost items as may be required, with fixed charges and time related charges as required.”

17. Bill No. 2 of the “Contract Bills” included a page entitled “Earthworks to be kept free of water”. That page included:-

“701 THE CONTRACTOR shall arrange for the rapid dispersal of water shed on to the earthworks or completed formation during construction or which enters the earthworks from any source and where practicable, the water shall be discharged into the permanent outfall for the pipe drainage system. Adequate means for trapping silt shall be provided on temporary systems discharging into permanent drainage systems. The arrangements shall be made in respect of all earthworks including excavations whether for pipe trenches, foundations or cuttings.

702 THE CONTRACTOR shall provide where necessary temporary water courses, ditches, drains, pumping or other means of maintaining the earthworks free from water. Such provision shall include carrying out the work of forming the cuttings and embankments in such a manner that their surfaces have at all times a sufficient minimum crossfall and, where practicable, a sufficient longitudinal gradient to enable them to shed water and prevent ponding.”

18. Appendix K to Bill No. 2 at item A dealt with “Watertight Construction for Basements and Other Structures below ground” in this way:-

“The Contractor shall give the necessary care and attention to the work at all stages of construction as required to obtain a watertight structure.”

19. Bill No. 3 of the “Contract Bills” was entitled “Substructure”. In dealing with “D. GROUNDWORK” it was indicated that that element was “ALL PROVISIONAL”. Section D.20 dealt with “Excavating and filling”. Item G on page 304 of Bill No. 3 was “Earthwork support; maximum depth not exceeding 1.00m; distance between opposing faces not exceeding 2.00m” in relation to excavating and filling, the quantity set out being 286 square metres. On page 305 of the Bill provision was made in relation to excavating and filling at items A to F for “Earthwork support extending below ground water level” to a variety of depths and with a variety of widths between opposing faces. Item G on that page in relation to the same operation was “Earthwork support; sides of basement excavation not supported by contiguous piles; (N.B. piles are situated at grid positions and a capping beam spans between); extending below ground water level; maximum depth not exceeding 6.00m; distance between opposing faces over 4.00m”. The quantity set out was 88 square metres.
20. There was no separate document in which were set out “Employer’s Requirements”. However, the “Supplementary Appendix” was completed in relation to “the Employer’s Requirements” as follows:-

“For all items listed in the Second Recital, provide all necessary working drawings which should be cross-referenced to the Architect’s drawings, calculations and evidence of satisfactory performance; specification information and product details with reference numbers.”

The reference to the items listed in the Second Recital was a reference to the list of items comprising “the Contractor’s Designed Portion”.

21. There was in fact no document in which were set out either “the Contractor’s Proposals” or “the CDP Analysis”.
22. Clause 1.3 of the Conditions included definitions for the purposes of the Contract. Those definitions included:-

“Approximate Quantity a quantity in the Contract Bills identified therein as an approximate quantity.

CDP Analysis the analysis of the portion of the Contract Sum relating to the Contractor’s Designed Portion.

Contractor’s Proposals the documents referred to as such in the Sixth recital signed by or on behalf of the parties to this Contract.”

23. Clause 2 of the Conditions included:-

“2.1.1 The Contractor shall upon and subject to the Conditions carry out and complete the Works in compliance with the Contract Documents.

2.1.2 For the purpose of so carrying out and completing the Works the Contractor shall, in accordance with the Contract Drawings and the Contract Bills where and to the extent that the same are relevant, complete the design for the Contractor’s Designed Portion including the selection of any specifications for any kinds and standards of the materials and goods and workmanship to be used in the construction of that Portion so far as not described or stated in the Employer’s Requirements or Contractor’s Proposals, and the Contractor shall comply with the directions which the Architect/the Contract Administrator shall give for the integration of the design for the Contractor’s Designed Portion with the design for the Works as a whole, subject to the provisions of clause 2.7.

2.1.3 Where and to the extent that approval of the quality of materials or of the standards of workmanship is a matter for the opinion of the Architect/the Contract Administrator, such quality and standards shall be to the reasonable satisfaction of the Architect/the Contract Administrator.

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

2.2.2 Subject always to clause 2.2.1:

2.2.2.1 the Contract Bills (or any addendum bill issued as part of the information referred to in clause 13A.1.1 for the purpose of obtaining a 13A Quotation), unless otherwise specifically stated therein in respect of any specified item or items, are to have been prepared in accordance with the Standard Method of Measurement of Building Works, 7^th Edition, published by the Royal Institution of Chartered Surveyors and the Building Employers Confederation;

2.2.2.2 if in the Contract Bills (or in any addendum bill issued as part of the information referred to in clause 13A.1.1 for the purpose of obtaining a 13A Quotation which Quotation has been accepted by the Employer) there is any departure from the method of preparation referred to in clause 2.2.2.1 or any error in description or in quantity or omission of items (including any error in or omission of information in any item which is the subject of a provisional sum for defined work) then such departure or error or omission shall not vitiate this Contract but the departure or error or omission shall be corrected; where the description of a provisional sum for defined work does not provide the information required by General Rule 10.3 in the Standard Method of Measurement the correction shall be made by correcting the description so that it does provide such information; any such correction under this clause 2.2.2.2 shall be treated as if it were a Variation required by an instruction of the Architect under clause 13.2.

2.2.2.3 any error in description or in quantity in the Contractor’s Proposals or the CDP Analysis or any error consisting of an omission of items from the Contractor’s Proposals or the CDP Analysis shall be corrected, but there shall be no addition to the Contract Sum in respect of such correction or in respect of any instruction requiring a Variation of the Works not comprised in the Contractor’s Designed Portion necessitated by any such error or its correction.

2.2.2.4 The Contractor shall be deemed to have inspected and examined the site and its surroundings and to have satisfied himself before submitting his tender as to

.1 the form and nature of the site including the ground and subsoil;

.2 the means of communication with and access to the site and the accommodation which he may require;

.3 the availability of working space and general facilities;

.4 the extent, nature and availability of work, labour, goods and materials for completing the Works; and

.5 generally to have obtained for himself all necessary information as to risks, contingencies and other relevant circumstances.

2.7.1 Insofar as the design of the Contractor’s Designed Portion is comprised in the Contractor’s Proposals and in what the Contractor is to complete under clause 2.1.2 and in accordance with the Employer’s Requirements and the Conditions (including any further design which has to be carried out by the Contractor as a result of a Variation) the Contractor shall have in respect of any defect or insufficiency in such design the like liability to the Employer, whether under statute or otherwise, as would an architect or, as the case may be, other appropriate professional designer holding himself out as competent to take on work for such design who, acting independently under a separate contract with the Employer, had supplied such design for or in connection with works to be carried out and completed by a building contractor not being the supplier of the design.

2.8 If the Contractor is of the opinion that compliance with any direction under clause 2.1.2 or any instruction issued by the Architect/the Contract Administrator injuriously affects the efficacy of the design of the Contractor’s Designed Portion, he shall within 7 days of receipt of the direction or instruction by notice in writing to the Architect/the Contract Administrator specify the injurious affection, and the direction or instruction shall not take effect unless confirmed by the Architect/the Contract Administrator.

2.11 The Contractor shall ensure the proper integration and compatibility of the various elements of the Works, one with another and with the remainder of the Works.

2.12 The Contractor shall be responsible for the co-ordination of the design to the extent that such design is stated in the Contract Documents, or in any sub-contract documentation, to be the responsibility of the Contractor or of any sub-contractor or supplier and the Contractor shall comply with and shall ensure that all relevant sub-contractors and suppliers comply with the requirements for the submission and approval of design information as set out or referred to in the Preliminaries to the Contract Bills; the Contractor shall monitor the preparation of final approved drawings containing or reflecting fully detailed design information and shall inform the Employer as soon as reasonably practicable if there is likely to be any delay in the preparation of initial or revised/amended drawings by sub-contractors and/or suppliers or in their approval by the Architect; the Contractor shall also offer reasonable proposals and/or recommendations for reducing the effect of any such delay upon the carrying-out and completion of the Works. ”

24. By Clause 8.1.1 of the Conditions it was provided that:-

“All materials and goods for the Works other than the part thereof comprised in the Contractor’s Designed Portion shall, so far as procurable, be of the kinds and standards described in the Contract Bills or as otherwise instructed by the Architect. All materials, goods and workmanship for the Contractor’s Designed Portion shall be of the respective kinds and standards described in the Employer’s Requirements, or, if not there more specifically described, the Contractor’s Proposals or documents referred to in clause 2.5.1 provided that the Contractor shall not substitute anything without the Architect’s consent in writing, which shall not be unreasonably delayed or withheld, but provided further that no such consent shall relieve the Contractor of his other obligations under this Contract or otherwise. Further to the aforesaid, all materials, goods and workmanship and the Works as a whole shall comply with the warranties set out in the Appendix.”

25. The warranties set out in the “Appendix” included these:-

“8.1.1 All materials and goods shall be safe, sound, free of defects and otherwise of good quality, durability, finish and appearance and shall comply with the Statutory Requirements referred to in Clauses 1.3 and 6.1 of the Conditions (subject to the provisions of the latter Clause) and with any relevant Codes of Practice (howsoever described or entitled and including, but without limitation, any non-statutory regulations published by any professional or trade body or association) or British Standards.

8.1.2 All workmanship shall be of sound and workmanlike quality and shall comply with the Statutory Requirements and the Health and Safety Plan referred to in Clauses 1.3 and 6.1 of the Conditions (subject to the provisions of the latter Clause) and with any relevant Codes of Practice (howsoever described or entitled and including, but without limitation, any non-statutory regulations published by any professional or trade body or association).

8.1.3 All goods and materials supplied by the Contractor or by any sub-contractor or supplier (immediate or otherwise) shall be fit for their individual or collective purposes to the extent that such purposes have, expressly or by implication, been made known to the Contractor or such sub-contractor or supplier.

8.1.4 To the extent that the Contractor or any sub-contractor or supplier is responsible for the design of the Works or any part thereof, all proper professional skill and care has been taken in relation to such design and the Statutory Requirements referred to in Clauses 1.3 and 6.1 have been complied with, provided that if defects or possible defects of design which would be apparent to an experienced and competent Contractor shall be revealed, the Contractor shall, notwithstanding that neither the Contractor nor any sub-contractor or supplier shall be responsible for the element of design in point, report such defects or possible defects to the Architect or the Employer so that consideration may be given (if appropriate) to the issue of an instruction under Clause 13.2 of the Conditions or to other appropriate action and provided further that this obligation to report defects or possible defects shall remain effective after completion of the Works or earlier termination or discharge of this Contract or of the Contractor’s employment thereunder in the case of defects or possible defects involving a risk to health or safety.”

26. Clause 13 of the Conditions included:-

“13.1 The term “Variation” as used in the Conditions means:

13.1.1 the alteration or modification of the design, quality or quantity of the Works unless such alteration or modification has been agreed between the Employer or the Architect on his behalf and the Contractor prior to the date of this Agreement including

13.1.1.1 the addition, omission or substitution of any work,

13.1.1.2 the alteration of the kind or standard of any of the materials or goods to be used in the Works,

13.1.1.3 the removal from the site of any work executed or materials or goods brought thereon by the Contractor for the purposes of the Works other than work materials or goods which are not in accordance with this Contract;

13.1.2 the imposition by the Employer of any obligations or restrictions in regard to the matters set out in clauses 13.1.2.1 to 13.1.2.4 or the addition to or alteration or omission of any such obligations or restrictions so imposed or imposed by the Employer in the Contract Bills or in the Employer’s Requirements in regard to:

13.1.2.1 access to the site or use of any specific parts of the site;

13.1.2.2 limitations of working space;

13.1.2.3 limitations of working hours;

13.1.2.4 the execution or completion of the work in any specific order;

but excludes

13.1.3 nomination of a sub-contractor to supply and fix materials or goods or to execute work of which the measured quantities have been set out and priced by the Contractor in the Contract Bills for supply and fixing or execution by the Contractor.

13.2.1 The Architect may issue instructions requiring a Variation. Provided that, in respect of the Contractor’s Designed Portion, any such instruction shall be a statement of an alteration to or modification of the Employer’s Requirements.

13.2.2 Any instruction under clause 13.2.1 shall be subject to the Contractor’s right of reasonable objection set out in clause 4.1.1 and to his entitlement under 2.7 to specify any injurious affection to the design of the Contractor’s Designed Portion which, in his opinion, may be caused by compliance with such instruction.

13.2.3 The valuation of a Variation instructed under clause 13.2.1 shall be in accordance with clause 13.4.1 unless the instruction states that the treatment and valuation of the Variation are to be in accordance with clause 13A or unless the Variation is one to which clause 13A.8 applies. Where the instruction so states, clause 13A shall apply unless the Contractor within 7 days (or such other period as may be agreed) of receipt of the instruction states in writing that he disagrees with the application of clause 13A to such instruction. If the Contractor so disagrees, clause 13A shall not apply to such instruction and the Variation shall not be carried out unless and until the Architect instructs that the Variation is to be carried out and is to be valued pursuant to clause 13.4.1.

13.2.4 The Architect may sanction in writing any Variation made by the Contractor otherwise than pursuant to an instruction of the Architect.

13.2.5 No Variation required by the Architect or subsequently sanctioned by him shall vitiate this Contract.

The Contractor shall not be entitled to claim any extension of time or any addition to the Contract Sum by reason of any sanction given by the Architect pursuant to this clause unless the Contractor shall have requested such sanction from the Architect in writing within 14 days of commencement of the relevant work or otherwise first giving effect to the relevant Variation…

13.4.1.1 Subject to clause 13.4.1.2

all Variations required by the Architect/the Contract Administrator or subsequently sanctioned by him in writing and all works executed by the Contractor in accordance with instructions by the Architect/the Contract Administrator as to the expenditure of provisional sums which are included in the Contract Bills or in the Employer’s Requirements shall be valued by the Quantity Surveyor and

all work executed by the Contractor for which an Approximate Quantity is included in the Contract Bills or in the Employer’s Requirements shall be measured and valued by the Quantity Surveyor

and, unless otherwise agreed by the Employer and the Contractor, or unless the Architect/the Contract Administrator has issued to the Contractor a confirmed acceptance of a 13A Quotation for such Variation or it is a Variation to which clause 13A.8 applies, such valuation (in the Conditions called “the Valuation”) in respect of the Works other than the Contractor’s Designed Portion shall be made in accordance with the provisions of clauses 13.5.1 to 13.5.5 and 13.5.7 and, in respect of Performance Specified Work, with the provisions of clauses 13.5.6 and 13.5.7 and, in respect of the Contractor’s Designed Portion, with the provisions of clause 13.8..

13.5.1 To the extent that the Valuation relates to the execution of additional or substituted work which can be properly be valued by measurement or to the execution of work for which an Approximate Quantity is included in the Contract Bills such work shall be measured and shall be valued in accordance with the following rules:…

13.5.1.4 where the Approximate Quantity is a reasonably accurate forecast of the quantity of the work required the rate or price for the Approximate Quantity shall determine the Valuation;

13.5.1.5 where the Approximate Quantity is not a reasonably accurate forecast of the quantity of work required the rate or price for that Approximate Quantity shall be the basis for determining the Valuation and the Valuation shall include a fair allowance for such difference in quantity. ”

The Terra Tek Report

27. The Terra Tek Report included the following paragraphs in which comment was made concerning the question of ground water levels:-

“This report is based on information established by observation, boring, sampling and testing. It should be noted that natural strata vary from point to point and groundwater conditions are dependent on seasonal and other factors, while infill materials are subject to an even greater degree of diversity. Whilst an attempt is made in comprehensive reporting to assess the likelihood or extent of such variations at the site, it should be recognised that there may be conditions pertaining which are not disclosed by the investigation…

Groundwater was encountered in the soils boreholes in borehole 1 at 8.5m depth and at 4.2m in borehole X. In Boreholes 4a and Y damp conditions were detected at 6m and 5m respectively, with, readings of 7m and 5m taken at the end of the second day’s drilling in each hole. Finally, borehole Z indicated a level of 4.75m beneath basement level at the base of the hole. A borehole however represents a very insensitive standpipe during the limited period for which it remains open, and in view of the close vicinity of the River Clyde, which is known to be tidal in places, and the fact that re-drilling was required during boring, the groundwater conditions encountered therein may not be truly representative of the groundwater regime of the area.”

The relevant provisions of the Standard Method of Measurement, 7^th Edition

28. The Standard Method of Measurement of Building Works, 7^th Edition, published by the Royal Institution of Chartered Surveyors and the Building Employers Confederation, to which document I shall refer in this judgment as “SMM7”, includes various “General Rules”. In particular, it is provided by Rule 1 that:-

“1.1 This Standard Method of Measurement provides a uniform basis for measuring building works and embodies the essentials of good practice. Bills of quantities shall fully describe and accurately represent the quantity and quality of the works to be carried out. More detailed information than is required by these rules shall be given where necessary in order to define the precise nature and extent of the required work.

1.2 The rules apply to measurement of proposed work and executed work.”

29. Rule 2 of the General Rules in SMM7 is concerned with “Use of the tabulated rules”. In it an explanation is given of how the tables which follow in SMM7 are to be interpreted. Rule 2 includes the following:-

“2.6 Each item description shall identify the work with respect to one descriptive feature drawn from each of the first three columns in the classification table and as many of the descriptive features in the fourth column as are applicable to the item. The general principle does not apply to Preliminaries in that it will be necessary to select as many descriptive features as appropriate from each column…

2.9 Measurement rules set out when work shall be measured and the method by which quantities shall be computed.

2.10 Definition rules define the extent and limits of the work represented by a word or expression used in the rules and in a bill of quantities prepared in accordance with the rules.”

30. Section A of the Classification Tables in SMM7 is entitled “Preliminaries/General conditions”. Items A20, A30, A34 and A44 contain no measurement rules.
31. In SMM7 Section D20 of the Classification Tables is concerned with the measurement of works of “Excavating and filling”. In respect of “INFORMATION PROVIDED” that Section of the tables indicates:-

“P1 The following information is shown either on location drawings under A Preliminaries/General conditions or on further drawings which accompany the bills of quantities or stated as assumed:

(a) the ground water level and the date when it was established, defined as the pre-contract water level

(b) the ground water level is to be re-established at the time each excavation is carried out and is defined as the post contract water level

(c) ground water levels subject to periodic changes due to tidal or similar effects are so described giving the mean high and low water levels

(d) details of trial pits or boreholes including their location

(e) features retained

(f) live over or underground services indicating location

(g) pile sizes and layout in accordance with Sections D30 – D32 where applicable”

32. The Classification Table in respect of Section D20 in SMM7 includes in relation to zone 3 “Items extra over any types of excavating irrespective of depth”, column 2 “Excavating below ground water level” as the measurement rule:-

“M5 If the post contract water level differs from the pre-contract water level the measurements are to be revised accordingly.”

33. In relation to zone 7 “Earthwork support”, column 5 of the Classification Table for Section D20 includes both “2. Below ground water level” and “3. Unstable ground”. The measurement rules are:-

“M9 Earthwork support is measured the full depth to all faces of excavation whether or not required except to:

(a) face < 0.25 m high

(b) sloping faces of excavations where the angle of inclination is < 45° from the horizontal

(c) faces of excavations which abut existing walls, piers, or other structures

M10 Earthwork support below ground water level or in unstable ground is measured from the commencing level of the excavation to the full depth.

M11 Earthwork support below ground water level is only measured where a corresponding item is measured in accordance with 3.1.0.0 and is adjusted accordingly if the post contract water level is different.”

The definition rules for this zone include D8:-

“Unstable ground is running silt, running sand, loose gravel and the like.”

34. Zone 8 of Section D20 of the Classification Tables in SMM7 is concerned with “Disposal”. Column 2 covers both “ 1. Surface water” and “2. Ground water”. The measurement rule is M12:-

“An item for disposal of ground water is only measured where a corresponding item is measured in accordance with 3.1 and is adjusted accordingly if the post contract water level is different.”

35. Section D30 of the Classification Tables in SMM7 relates to “Cast in place concrete piling”. The “INFORMATION PROVIDED” in respect of that activity includes:-

“P1 The following information is shown either on location drawings under A Preliminaries/General conditions or on further drawings which accompany the bills of quantities:

(a) the general piling layout

(b) the positions of different types of piles

(c) the positions of the work within the site and of existing services

(d) the relationship to adjacent buildings

P2 Soil description

(a) the nature of the ground is given in accordance with Section D20 Information Provided

(b) where work is carried out near canals, rivers, etc or tidal waters, the level of the ground in relation to the normal levels of the canal or river etc or to the mean Spring levels of high and low tidal waters, is stated; flood levels are stated where applicable”

The Preliminary Issues

36. The preliminary issues which have been agreed and which I have ordered should be tried are divided into five sections. The first section is entitled “General”. The other sections are:-

“A Ground conditions/Groundwater

B Design

C Construction

D SMM7 issues.”

37. The parties have adopted, through their respective Counsel, rather different approaches to the structure of their written submissions in relation to the preliminary issues. Mr. Baatz and Miss Doerries have concentrated their fire in their initial written submissions very much on the general section of the issues and have made little more than one or two sentence submissions in respect of the issues in the other sections. In their written submissions in reply they have again concentrated upon general matters, although they have given rather more attention than in their initial submissions to the issues in section D. In his initial offering Mr. Coulson made no submissions at all in relation to the “General” section of the issues, but fairly lengthy submissions in respect of each of the issues raised in sections A, B, C and D. In his written submissions in reply Mr. Coulson devoted most of his attention to criticising the approach of Mr. Baatz and Miss Doerries in their initial written submissions. Mr. Bowdery made somewhat brief submissions in relation to the “General” section of the issues in his initial written submissions and largely held his fire until he came to the other sections. In his written submissions in reply Mr. Bowdery also rather concentrated his attention upon criticism of the approach of Mr. Baatz and Miss Doerries in their initial written submissions. In the result it is largely in the initial written submissions on behalf of each party that the substance of its case in respect of each of the preliminary issues is to be found. That substance was the subject of further oral exposition at a brief hearing before me.
38. The “General” section of the formulation of the issues is in the following terms:-

“What were HB’s [that is to say, Boot’s] contractual obligations (if any) in respect of:

(a) The design of the basement walls;

(b) The construction of the basement walls;

(c) The prevailing ground conditions (including the groundwater level) and (if different) the ground conditions (including the groundwater level) discernible from the 1994 Terra Tek Report).

Set out below are the specific construction issues which the parties presently believe arise between them. It is also thought by at least one party that Issues A2 and D may require some short expert evidence as an aid to construction. It has been agreed that the parties can, if they wish, serve such evidence, and that any other party can take whatever points they wish in respect of such evidence, including any arguments as to admissibility.”

Some expert evidence has been served on behalf of CIS and also on behalf of Boot. As matters turned out, only Mr. Baatz and Miss Doerries sought to rely upon any of the expert evidence which had been served as being likely to assist me in dealing with the preliminary issues. They urged upon me that I should derive enlightenment from the comments of Mr. Frank Rowley, a civil engineer retained on behalf of Boot for the purposes of this action, on the Terra Tek Report. However, it does not seem to me that such evidence is actually of any assistance in addressing the issues which I have to determine. This is not a case in which it is contended that some expression used in the Terra Tek Report was technical and outside the usual vocabulary of the Court, or, although apparently an ordinary English expression, used in a technical sense such that I would not understand it without guidance as to its meaning in the construction industry. Rather the thrust of Mr. Rowley’s contribution was that what appeared to be qualifications in the Terra Tek Report could or should be disregarded on technical grounds and that, having disregarded any such apparent qualifications, a conclusion could be inferred from what was said as to the differing levels of water recorded in various boreholes that the level of the ground water at the Property was generally 3.2m above Ordnance Datum. None of that seemed to me to be relevant to an interpretation of what the Terra Tek Report actually said. I incline to the view that the formulation of the questions in the “General” section of the preliminary issues is, on reflection, rather too general to admit of sensible answer. What I intend to do, therefore, is to consider the particular issues set out in sections A, B, C and D of the issues as formulated, whilst leaving it open to any party which considers that there was some issue comprehended within those set out in the “General” section which was not raised specifically in one of the other sections but which it is appropriate for me to consider at this stage to draw that view to my attention so that I can consider whether it would be helpful to grapple with whatever further issue or issues are so identified.

39. In the course of the written submissions to which I have referred Mr. Baatz and Miss Doerries, in particular, but also Mr. Coulson to an extent, have made assertions as to what are the facts underlying the disputes the subject of this action. It is plain, in particular from the written submissions in reply and from the oral submissions made to me by Mr. Coulson, that many of these assertions of fact are actually hotly contested. I am not able in the context of the consideration of the preliminary issues the subject of this judgment to resolve any disputed issue of fact. I have therefore put out of my mind all issues of fact. Insofar as in relation to any preliminary issue I express a view which is dependent upon what the relevant facts prove to be, the establishing of those facts is a matter for the main trial of this action fixed to take place in November this year.
40. Hereafter in this judgment I shall consider in turn each of the issues set out in sections A, B, C and D of the preliminary issues which have been agreed and indicate the principal submissions of the parties in relation thereto and my conclusions where it seems to me that I can usefully reach any conclusions at this stage. As I shall indicate, in relation to some issues my view at present is that the relevant issue cannot sensibly be addressed in a factual vacuum.

A1 Was the Terra Tek Report of 1994 a Contract Document?

41. This is really one of the central issues. In their written submissions dated 21 May 2002 Mr. Baatz and Miss Doerries summarised the case of Boot in this way:-

“10. It is Boot’s case that it was, as a matter of contract, entitled to rely upon the information about the prevailing ground conditions contained in the [Terra Tek] Report and that the difference between that information (essentially stable ground and groundwater level at approximately 3.2m AOD) and what were the conditions encountered (unstable ground and groundwater level at approximately 6m AOD) is fundamental.

11. Boot says that the contiguous bored pile wall design by CHW together with Boot’s proposed dewatering would have provided an effective and adequate support and a watertight barrier if groundwater levels had been as described in the [Terra Tek] Report. If the ground conditions had been as described in the [Terra Tek] Report the soil between the contiguous bored pile walls would have “arched” and this together with the planned dewatering would have prevented any soil and/or groundwater loss. It was of the essence of the contiguous bored pile walls that this arching occurs and therefore the use of this design by CHW presupposed dry and stable ground.”

42. Mr. Baatz and Miss Doerries submitted that the Terra Tek Report was incorporated into the Contract because it was referred to in Note 5 on Drawing A301A. That submission was developed at paragraph 14 of the written submissions dated 21 May 2002, omitting references to pages in the trial bundles, as follows:-

“The fact that the Report was incorporated and incorporated so as to identify the prevailing ground conditions is reinforced by the following references in the Contract Documents:

(a) Drawing A303 expressly stated that the piling design and specification were based on the [Terra Tek] Report;

(b) Drawing S1 was incorporated by the Third and Sixth Schedules and drawing S1 necessarily incorporated with it the [Terra Tek] Report without which drawing S1 was meaningless;

(c) Item 171 of the Bills of Quantities incorporated the [Terra Tek] Report; and

(d) Item 130 of the Bills of Quantities expressly stated that the Bills of Quantities had been prepared from the Tender Drawings (which included Drawings A301A and A303).”

43. At paragraph 29 of their written submissions dated 21 May 2002 Mr. Baatz and Miss Doerries submitted that:-

“Drawing A301A was identified in the Preliminaries of the Bills of Quantities and accompanied them. It stated “For prevailing ground conditions refer to Site Investigation Report….” Accordingly on a proper and true construction of the Main Contract there was an express term of the Main Contract that the prevailing ground conditions would be as shown in the [Terra Tek] Report or that they were or would be taken to be as shown in the [Terra Tek] Report. Alternatively, if it was not an express term it was certainly an implied term of the Main Contract.”

44. The case as to the term for which Mr. Baatz and Miss Doerries contended being one which should be implied into the Contract was developed at paragraphs 30 and 31 of their written submissions dated 21 May 2002 as follows:-

“30. Boot were required to carry out their work in accordance with the contract Documents, see Article 1 and Clause 2.1.1. These included Drawing A301A which required the [Terra Tek] Report to be referred to for the prevailing ground conditions. In these circumstances there is at least an implied term or warranty that the ground conditions would accord with the ground conditions to which Boot had been referred as being the prevailing ground conditions.

31. Such a term is to be implied in fact. Had the officious bystander interfered to ask whether the purpose of the [Terra Tek] Report was to provide a level playing field for tenderers and a consequent benchmark for the soil conditions on the basis of which that the subsequent contract would be let, both parties would have suppressed this enquiry with a resounding “of course”.”

45. Both Mr. Coulson, in his written submissions dated 20 May 2002, and Mr. Bowdery, in his written submissions dated 17 May 2002, submitted that the answer to issue A1 was negative because the Terra Tek Report was not specifically mentioned in the list of “Contract Documents” set out in the Contract or stamped or signed as a “Contract Document”. Each of them submitted that the references to the Terra Tek Report in Drawing A301A and A303 were insufficient to incorporate it by reference into the Contract. The references were, submitted Mr. Coulson and Mr. Bowdery, for information purposes only. Mr. Coulson and Mr. Bowdery submitted that Drawing S1 did not actually refer to the Terra Tek Report at all, and that it was quite insufficient to incorporate the Terra Tek Report into the Contract that Drawing S1 was a plan showing the locations of the boreholes drilled as a part of the ground investigation which preceded the writing of the Terra Tek Report. Similarly, submitted Mr. Coulson and Mr. Bowdery, the fact that Section A11 item 130 of Bill No. 1 of the “Contract Bills” recorded that the Bills had been “prepared from the tender drawings” was quite insufficient to result in the incorporation into the Contract of the Terra Tek Report. Mr. Coulson analysed the argument on the other side in this way:-

“The argument appears to be that because the Bills had been prepared from the tender drawings, and because the tender drawings included Drawings A301A and A303, and because those drawings refer to the Terra Tek Report, the Terra Tek Report was incorporated into the Main Contract. It is respectfully suggested that such an argument is fanciful: the Contract Documents were clearly defined, and that definition excluded this Report. In those circumstances it could not be incorporated in this roundabout fashion.”

46. Both Mr. Coulson and Mr. Bowdery submitted that the terms of Clause 2.2.2.4 of the Conditions were inconsistent with the incorporation into the Contract of the Terra Tek Report, in particular because by Clause 2.2.2.4.1 Boot was deemed to have satisfied itself as to “the form and nature of the site including the ground and subsoil”.
47. Mr. Baatz and Miss Doerries sought to answer the reliance which they anticipated that Mr. Coulson and Mr. Bowdery would place upon the terms of Clause 2.2.2.4 of the Conditions at paragraphs 51 to 54 inclusive and paragraph 57 of their written submissions dated 21 May 2002 as follows:-

“51… When Drawing A301A and Clause 2.2.2.4 are read as a whole, the only reasonable reading is that the Contractor is not only entitled but is obliged to take the ground conditions to be those identified in the [Terra Tek] Report and use it to satisfy himself as to the prevailing ground conditions. The risks assumed under Clause 2.2.2.4 relate to risks other than those that the contract has addressed by that contractual convention or norm.

52. Even if clause 2.2.2.4 applies to the ground conditions without any account being taken of the contractual norm, then it does not provide that Clause 2.2.2.2 shall not apply to any matter or thing which would have been, but was not, detected by any such deemed inspection. There are no express words in Clause 2.2.2.4 or Clause 2.2.2.2 to that effect. Therefore whilst the Contractor accepts the risk in Clause 2.2.2.4 he accepts the risk against the background of his rights under the contract including those under Clause 2.2.2.2. The rights conferred by Clause 2.2.2.2 are not qualified by any reference excepting any matter or thing to which Clause 2.2.2.4 relates.

53. There is no conflict between Clause 2.2.2.4 and 2.2.2. Clause 2.2.2.4.5 relates to “all necessary information as to risks etc”. Where a Site Inspection Report has been provided to Boot for Boot to rely upon “For prevailing ground conditions refer to …” there was no risk and therefore no need for any further “necessary” information.

54. Equally Clause 2.2.2.4.1 has to be read with the fact of the provision of the [Terra Tek] Report. The deemed satisfaction cannot leave out the fact that the [Terra Tek] Report has been provided. In any event Clause 2.2.2.4 does not have any express exclusionary effect…

57. CIS seek to use clause 2.2.2.4 as an exclusion of its liability to pay for the variation instructions etc. CIS say that it is effective even where the [Terra Tek] Report provided by them was misleading. If, contrary to Boot’s submissions set out above, Clause 2.2.2.4 does have that effect, then it is wide enough to exclude liability for misrepresentation and in those circumstances, as Section 3 of the Misrepresentation Act 1967 provides, it shall have no effect.”

48. Mr. Baatz and Miss Doerries in their written submissions dated 21 May 2002 identified a sub-issue of issue A1 which had not previously been identified. That sub-issue was “Was the statement of prevailing ground conditions contained within the Terra Tek Report of 1994 incorporated into the contract between CIS and HB?” The submissions of Mr. Baatz and Miss Doerries in relation to that sub-issue were:-

“Even if the [Terra Tek] Report was not a contract document the clear statement at Drawing A301A incorporated into the contract the statement of prevailing ground conditions contained in the [Terra Tek] Report which became a contractual given or benchmark as between CIS and Boot or a conventional basis upon which both parties to the contract were entitled to proceed.”

Moreover, submitted Mr. Baatz and Miss Doerries, the statement as to prevailing ground conditions which became such “contractual given or benchmark” was what was to be derived from the Terra Tek Report without regard to any qualifications in the report, as such qualifications, if given effect, meant that no worthwhile information was being conveyed by the Terra Tek Report.

49. In my judgment it is plain that the Terra Tek Report was not incorporated into the Contract. It was not in the list of identified “Contract Documents”, or stamped or signed as a “Contract Document”. The nature of a ground investigation report is such that it is unlikely, it seems to me, that parties to a contract would wish to incorporate it into a contract between them. All it can show is what was the result of particular soil investigations. If parties did in fact seek to incorporate a ground investigation report into a contract between them, difficulties could arise as to what was the effect in law of so doing. If one has regard to the terms of the Terra Tek Report, and in particular to those two parts of the narrative in which there is reference to ground water, it is really impossible to say that any definite or positive statement of a nature such as could amount to any sort of contractual term was made. Rather, the information given was hedged about with qualifications as to the accuracy and reliability of what was shown by the investigations undertaken. Most assuredly, the Terra Tek Report did not say in terms anything remotely like what Mr. Baatz and Miss Doerries submitted in their written submissions dated 21 May 2002 it said. I accept the submissions of Mr. Coulson and Mr. Bowdery that the references to the Terra Tek Report in Drawing A301A and A303 were simply included to identify for Boot, or whichever contractor undertook the Works, a source of potentially relevant information about ground conditions at the Property.
50. The reliance sought to be placed by Mr. Baatz and Miss Doerries on the terms of item 130 of Section A11 of Bill No. 1 of the “Contract Bills” seems to me to be misplaced. The effect of their submission was, I think, accurately analysed by Mr. Coulson in the passage from his written submissions which I have quoted. Essentially what the submission of Mr. Baatz and Miss Doerries amounts to is an attempt to incorporate the Terra Tek Report into the Contract by an even longer chain than simply reliance on the references in Drawing A301A and Drawing A303, which are expressly “Contract Drawings”, without the increased length of the chain adding anything to the basic analysis. However one looks at it, whether simply on the basis of the references in Drawings A301A and A303, or by reference to how the “Contract Bills” are stated to have been prepared, it all comes down to what is the significance of the references in the relevant drawings to the Terra Tek Report.
51. I reject the submission of Mr. Baatz and Miss Doerries that there was to be implied a term into the Contract to the effect that the Terra Tek Report was to be incorporated therein. If the Terra Tek Report was not expressly incorporated into the Contract, I can see no justification for incorporating it by implication under the guise of a term that the ground conditions at the Property would be as shown in the Terra Tek Report. As I have indicated, it does not seem to me that in relation to groundwater any statement sufficiently definite sensibly to be relied upon was contained in the Terra Tek Report in any event. Far from that analysis resulting in a need to disregard the qualifications, the presence and terms of the qualifications in my judgment emphasise that the correct conclusion in relation to this issue is that which I have expressed.
52. The effect of Clause 2.2.2.4 of the Conditions was, in my judgment, subject to any other relevant provision of the Contract, to place the risk that ground conditions at the Property might prove to be something other than anticipated on Boot. Contrary to the submission of Mr. Baatz and Miss Doerries, that provision was not, it seems to me, an exclusion clause. It was simply a clause by which the contractual risk in relation to ground conditions, amongst other things, was allocated, subject to any other relevant provision of the Contract, as between CIS and Boot. The submission of Mr. Baatz and Miss Doerries in relation to Clause 2.2.2.4 of the Conditions being an exclusion clause must, I think, be based on the erroneous analysis that, but for it, there would be a liability on the part of CIS in respect of any difference between the ground conditions indicated in the Terra Tek Report and those in fact found. However, that could not be unless some contractual obligation in relation to the Terra Tek Report had been accepted on the part of CIS.
53. I ought to make clear, for the avoidance of confusion, that in my view Clause 2.2.2.4 of the Conditions should not be treated as overriding the express provisions in Clauses 2.2.2.1 and 2.2.2.2 of the Conditions as to the basis upon which Boot is entitled to payment in the event that particular information which is assumed to have been given in the “Contract Bills” either has not been given, or has not been given in accordance with the provisions of SMM7 without any departure from SMM7 having been explained. Where the Contract is otherwise silent it seems to me that Clause 2.2.2.4 has the effect which I have set out in the preceding paragraph. However, where there is some other express obligation contained in the Contract on the part of CIS to provide particular information, such as under Clause 2.2.2.1, relevant for the purpose of valuation of the Works, it does not seem to me that the “deemed to have satisfied himself” provision in Clause 2.2.2.4 can, as a matter of construction, have the effect of excusing CIS from what would otherwise be the consequences of not providing that information. Mr. Bowdery in his oral submissions did go so far as to submit that Clause 2.2.2.4 did prevail over other terms of the Contract so as to produce the consequence that Boot was bound to accept any and all implications of what the ground conditions at the Property actually proved to be without any entitlement in any circumstances to any additional payment. Mr. Coulson did not go that far, but simply relied on Clause 2.2.2.4 as a background provision the existence of which was consistent with the construction of other terms of the Contract for which he contended. It seems to me that Mr. Coulson was realistic in not adopting as extreme a position as Mr. Bowdery.
54. I do not consider that it is possible usefully to deal with the sub-issue of issue A1 identified by Mr. Baatz and Miss Doerries as part of the hearing of preliminary issues. What seems to be contended for is some sort of estoppel by convention. While the documentary material put before me for the purposes of the resolution of the preliminary issues would not seem to support the analysis that, failing all else, there was an estoppel by convention, I do not think that it would be right to decide that sub-issue without the opportunity for each of the parties to lead whatever oral evidence they might wish in respect of that question.

A2 Did the Terra Tek Report of 1994 amount to a warranty or representation from CIS that the prevailing (actual) ground conditions/groundwater level would be those that were discernible from that Report?

55. Mr. Baatz and Miss Doerries submitted that the answer to this issue was affirmative. They did not really elaborate upon why, but I imagine that Boot’s case in relation to this issue is simply that, if the Terra Tek Report was incorporated into the Contract, the statements in it as to ground conditions and groundwater took effect as warranties, while, if the Terra Tek Report was not incorporated into the Contract, the furnishing of it induced Boot to enter into the Contract in reliance upon the statements contained in it.
56. It was in the particular context of this issue that Mr. Baatz and Miss Doerries made the point in their written submissions in reply dated 11 June 2002 as to how the references to which they called attention in Drawing A301A and Drawing A303 to the ground conditions allegedly set out in the Terra Tek Report should be interpreted. At paragraph 27 they contended:-

“The report had been read by CHW and its further deployment determined upon by them and CIS. CHW and CIS determined to deploy the report in the manner stipulated in Drawing A301A. The injunction to refer to the Site Investigation Report for the prevailing ground conditions means not that the report is to be referred to but the description of the ground conditions is to be referred to. In other words, CHW have considered the comments and determined that notwithstanding these comments, Boot and the other tenderers are to take the ground conditions to be those described in the report. Insofar, therefore, as the comments are reservations they have been considered by CHW and overridden by the injunction to the tenderers. That is consistent with the character of CHW’s design which is itself based upon the described ground conditions and not affected by the comments. It is important to distinguish what the report said from whether there was an express term of the contract that the prevailing ground conditions would be as shown in the Report. The comments are not therefore relevant to whether there was a term or warranty that the prevailing ground conditions were as per the Report.”

57. Mr. Coulson and Mr. Bowdery both submitted that the answer to this issue was negative. Each submitted that because the Terra Tek Report was not one of the “Contract Documents”, it followed that nothing in it could be a warranty. Mr. Coulson submitted that, on that account, nothing in it could be a representation either. Mr. Bowdery accepted that, potentially, the Terra Tek Report could contain representations, but that actually, when one considered it, it did not, at least not in relation to the groundwater conditions at the Property. Mr. Coulson relied upon the terms of the first of those passages from the Terra Tek Report which I have set out earlier in this judgment as making “plain at the outset that it is not to be taken as an unqualified statement of the actual conditions and groundwater level on site: these things always vary” and, submitted in relation to the second passage quoted, “Again, it was clear that Terra Tek were saying that the groundwater levels noted in the boreholes, which varied from borehole to borehole, could not be taken as a warranty or representation as to the groundwater regime in the area.”. Mr. Bowdery in his submissions echoed those points. Mr. Coulson went on to draw attention to the nature of the alleged warranty and representation:-

“HB allege Paragraphs 49 and 58A.4.2 of the DCC) that the Terra Tek Report amounted to a warranty or representation that the groundwater level would be 3.5m OD to 4.00m OD. That level is apparently an average band taken from the various, differing groundwater levels noted in the boreholes. Again, it is simply not understood how the Report can be said to amount to a warranty or representation that the groundwater level would be 3.5m OD to 4.00m OD. Not only did the disclaimers, identified above, make it plain that the author of the Report could not give any warranty or representation as to the groundwater level, but it would be absurd to take an average of the different figures taken and use the average figure as a warranty of the actual level across the site. The average would be less than the level noted in the same boreholes. If the groundwater levels varied, then, at the very least, the Report was saying that the groundwater level could have been as high as 4.15m OD, the highest figure found in the Boreholes… Therefore, the warranty/representation relied on by HB is unsupportable in any event.”

58. It seems to me to follow from the fact that, as I have held, the Terra Tek Report was not incorporated into the Contract, that nothing in it could be a term of the Contract. I accept the submission of Mr. Bowdery that, potentially, something in the Terra Tek Report could amount to a representation. Indeed, potentially, the Terra Tek Report could form part of a contract collateral to the Contract under which Boot might derive rights separate from those created under the Contract. However, I also accept the submissions of Mr. Coulson and Mr. Bowdery that in fact, when one considers the terms of the Terra Tek Report in relation to groundwater, it not only does not say what Mr. Baatz and Miss Doerries submitted it said, but it does not contain any statement sufficiently definite and unqualified to amount to a representation upon which Boot could reasonably have relied. In those circumstances the answer to this issue is negative.

A3 What were HB’s contractual rights and obligations in respect of the prevailing (actual) ground conditions/groundwater level on site? Were those rights and obligations subject to the ground conditions/groundwater level that were discernible from the 1994 Report?

59. In their written submissions dated 21 May 2002 Mr. Baatz and Miss Doerries contended that:-

“Boot’s rights in respect of the prevailing ground conditions were that they were entitled to take the benchmark stated in the [Terra Tek] Report as given, alternatively they were entitled to recover pursuant to Clause 2.2.2.”

Mr. Baatz and Miss Doerries did not elaborate upon that submission. It seemed to me that the terms of the first part of the submission assumed success in relation to issue A1 and/or issue A2 and was simply directed to pointing to the logical consequences on such assumption. The reference to Clause 2.2.2 appeared to be directed to that part of the submissions in relation to issue A1 or the “General” section of the preliminary issues which was to the effect that the “Contract Bills” had not been prepared in accordance with SMM7. I shall come to deal with that way of putting the case when I consider the submissions in relation to section D of the preliminary issues.

60. Mr. Bowdery submitted that the issue was impossible to understand because “HB did not have any contractual rights or obligations in respect of the prevailing ground conditions/groundwater table on site.” However, he went on to submit that Boot had a contractual obligation to satisfy itself as to the form and nature of the site including the ground and subsoil, that it had an obligation under Bill No. 2 items 701 and 702 to control groundwater, and it had an obligation under Bill No. 2 Appendix K item A to obtain a watertight structure during all stages of construction. He also submitted that Boot was fully responsible for and obliged to provide earthwork support to sub-basement excavations, such being part of the “Contractor’s Designed Portion”.
61. Mr.Coulson in answer to this issue in his written submissions dated 20 May 2002 expanded his submissions in relation to the Terra Tek Report and what the effect of that document was. He reminded me of the terms of Clause 2.2.2.4 of the Conditions and of the definition of the “Contractor’s Designed Portion”. He also submitted that the definition of the “Employer’s Requirements” in the Supplementary Appendix made it clear that Boot was to provide all necessary working drawings in relation to the items forming part of the “Contractor’s Designed Portion”. Further, he drew attention to the terms of Clause 8.1.4 of the Appendix to the Contract and submitted that Boot “owed an obligation to warn of defects, whether or not they were responsible for the particular element of design in question, provided that such defects “would be apparent to an experienced and competent contractor”.” Mr. Coulson indicated in his written submissions that he would deal with the construction obligations of Boot in making submissions in relation to section C of the preliminary issues. He summarised the case of CIS in relation to issue A3 in this way:-

“In short, there is nothing in the express words of the Contract to support the proposition that all of HB’s design and construction obligations were to be somehow filtered through the [Terra Tek] Report or that, put another way, those rights and obligations were to be measurable by reference to the notional conditions in the Report not the actual conditions on site. Such a proposition is contrary to the express terms of the Contract as well as to commonsense. It would require clear an [sic] unambiguous wording to give rise to such a result, and there is nothing in the Contract (or the Report) which provides any assistance at all.”

62. As issue A3 has been formulated it seems to me that the answer is that put forward by Mr. Bowdery as his first submission in relation to the issue, that is to say, none. The concept of having contractual rights and obligations in respect of ground conditions or groundwater levels strikes me as meaningless. The ground conditions or groundwater levels are what they are. What matters is what are the contractual rights and liabilities as a result of the occurrence at the Property on 13 - 14 March 1996. What the formulation of the issue seems to be striving for is some conclusion that, whatever the groundwater levels actually were at the Property, Boot had some contractual right to assume that they were something different, or no contractual liability in the event that they proved to be something different from that which Boot assumed. Having indicated my conclusion in relation to issue A3 as formulated I deal separately with other ways in which Boot puts its case in considering the remaining preliminary issues.

A4 If there was a difference between the prevailing ground conditions/groundwater level and the ground conditions/groundwater level (if any) discernible from the 1994 Report, did the Contract exclude Boot’s liability for the consequences of that difference?

63. It appears to be common ground that the answer to this issue is negative. That is the conclusion for which both Mr. Coulson and Mr. Bowdery contended. Mr. Baatz and Miss Doerries in their written submissions dated 21 May 2002 submitted in relation to this issue:-

“This assumes that Boot had any liability for the consequence of the difference between the prevailing ground conditions and the actual groundwater level. For the reasons set out in relation to previous issues Boot did not have such a liability. But in any event even if Boot did have such a liability it was accompanied by a right to be paid under Clause 2.2.2 and SMM7. Boot do not think that this issue is happily phrased; it is an issue because it reflects CIS’ pleadings. Boot’s analysis is that in effect CIS say that Clause 2.2.2.4 entitles them to exclude any liability they may have for AIs 9, 10, 11 and 12 and for the statement that they made in Drawing A301A. Boot say that if this issue arises Clause 2.2.2.4 is of no effect by reason of Section 3 of the Misrepresentation Act 1967.”

64. Mr. Baatz and Miss Doerries, insofar as they differ from Mr. Coulson and Mr. Bowdery in relation to issue A4, seem to do so not in respect of the answer to the issue as formulated, but in respect of a contention that Clause 2.2.2.4 of the Conditions was an exclusion clause. I have indicated my view of Clause 2.2.2.4 and its effect. I do not share the view that Clause 2.2.2.4 was an exclusion clause. I agree with all parties that the answer to issue A4 as formulated is negative.

B1 What were HB’s contractual rights and obligations in relation to the design of the piled walls?

65. Mr. Baatz and Miss Doerries submitted that Boot’s only contractual obligation in relation to the design of the piled walls forming part of the Works was to prepare working drawings in respect of the concept devised by CHW.
66. Mr. Coulson submitted that earthwork support to sub-basement excavations, bored bearing piles to foundations and contiguous bored pile walls and temporary propping to contiguous bored pile walls all formed part of the “Contractor’s Designed Portion”. He submitted that Boot was responsible for the design of those elements under the Contract. He further submitted that Boot was bound under the Contract to provide working drawings for those elements and in particular:-

“….even where some aspects of the design had already been carried out and were included within the Contract Drawings, HB had to complete that design by producing all necessary working drawings, and doing calculations and obtaining evidence that the design would work in practice.”

Mr. Coulson also relied on Clause 2.7 of the Conditions as fixing the standard of the design work to be done. He drew attention to Clause 2.11 of the Conditions and submitted that the effect of that provision was that Boot was bound to integrate the design of the bored pile walls with other elements of the Works. He contended:-

“Thus for instance, even if the bored pile walls were well advanced in the Contract Drawings, HB still had to ensure that their proposals for earthwork support during excavation properly integrated and were compatible with that design.”

Mr. Coulson relied, further, on Clause 2.12 of the Conditions in relation to the obligation of Boot to co-ordinate elements of the design of the Works. He submitted that the design obligations of Boot in respect of the bored pile walls for which he contended were consistent with the duty to warn arising under Clause 8.1.4 of the Appendix to the Contract. He drew attention to Bill No. 1 Section A34 item 120 and submitted that the responsibility for the stability and structural integrity of the Works for which that item made provision was important. Lastly, he submitted that the most important element of the sub-basement for present purposes was the earthwork support to the sides of the excavation, which it was the obligation of Boot to design. He said:-

“There are no Contract Drawings dealing with or indicating any earthwork support. It is referred to in the Bills (for the bored pile walls …and generally….) but it is measured in provisional (approximate) quantities only. This is because the design and implementation of the earthwork support was entirely a matter for HB. They had to design and construct a system to prevent soil and water from falling into the excavation because the sides of the excavation had collapsed. How they did it was a matter for them.

Thus, for the purposes of the present dispute Boot’s key design obligations fell into two categories.

(a) The East Wall

None of the drawings showed any design for the bulk of the East Wall. That was therefore a matter for HB. HB chose to put in contiguous bored pile walls, on a very similar design to the other three walls, with gaps of 1800mm to 3910mm ….between the piles. That was entirely a matter for them: it was a design decision they took as part of their obligation to complete the design.

(b) Earthwork Support

As noted above, the Contract Drawings were entirely silent on the question of earthwork support. Accordingly, it was for HB to design a method of supporting the earth between the piles, so as to prevent the sides of the excavation from collapsing and soil and water from flooding into the basement. This was a crucial failure on the facts: that there was no earthwork support between the piles, which, given the groundwater table and the nature of the soil, meant that the collapse of the excavations was inevitable.

Accordingly, it is CIS’ case that, as set out in the CDP, HB had an obligation to design proper earthwork support which met the Employer’s Requirements and, in particular to demonstrate (by calculation or other evidence) that they would perform satisfactorily.”

67. Mr. Bowdery submitted that Boot was responsible for the design of the contiguous bored pile walls. In his written submissions dated 17 May 2002 he went on:-

“They therefore had to check the outline design that had been produced and ensure that the same was suitable and/or appropriate for the prevailing ground conditions. Furthermore they had express obligations to warn should any aspect of the outline design be unsatisfactory and to take all reasonable precautions to prevent damage to adjoining properties. In addition they had responsibility for ensuring the stability and structural integrity of the Works (including the walls) during the contract and were responsible for providing all necessary support….

The Third Defendant had prepared a concept design for the piles and pile walls based upon using bored cast in situ concrete piles. Amec Piling had provided calculations sufficient to demonstrate that the piles would be structurally adequate for the purposes of the Building Warrant application. Thereafter Boot were responsible for the design of the piles and pile walls and for the preparation of specifications and working drawings. These responsibilities included:

.1 The structural design of the piles/pile walls whether by satisfying themselves and adopting Amec Piling’s initial design or preparing an alternative design by Amec Piling or others.

.2 The design of the piles in terms of the suitability of their diameter and spacing to adequately retain the ground behind the piles in the temporary condition.

.3 The design of any “special measures” necessary in conjunction with the contiguous pile wall to maintain stability of the excavation in the temporary conditions prior to completion of construction of the permanent facing wall. This would include assessing the stability of the soil in the gaps between the piles taking into account ground and groundwater conditions. ”

68. In my judgment the obligation of Boot under Clause 2.1.2 of the Conditions was to complete the design of the contiguous bored piled walls, that is to say, to develop the conceptual design of CHW into a completed design capable of being constructed. That process of completing the design must, it seems to me, involve examining the design at the point at which responsibility is taken over, assessing the assumptions upon which it is based and forming an opinion whether those assumptions are appropriate. Ultimately, in my view, someone who undertakes, on terms such as those of the Contract (that is to say, including Clause 2.7) an obligation to complete a design begun by someone else agrees that the result, however much of the design work was done before the process of completion commenced, will have been prepared with reasonable skill and care. The concept of “completion” of a design of necessity, in my judgment, involves a need to understand the principles underlying the work done thus far and to form a view as to its sufficiency. Thus I reject the submission of Mr. Baatz and Miss Doerries that all Boot had to do in any circumstances was to prepare working drawings in respect of the bored pile walls. If and insofar as the design of the walls remained incomplete at the date of the Contract, Boot assumed a contractual obligation to complete it, quite apart from any question of producing working drawings. Thus I accept the submissions of Mr. Coulson and Mr. Bowdery as to the answer to issue B1. While the obligations of Boot in respect of the design of earthwork support do not strictly fall to be addressed in order to deal with issue B1, it may be helpful to say that I accept the submissions of Mr. Coulson on that question also.

B2 Did HB have any responsibility or obligations in respect of any element of the design of the piled walls previously prepared by others?

69. All parties appear to accept, as it seems to me correctly, that the answer to this issue is determined by the answer to the previous issue.
70. Mr. Baatz and Miss Doerries submitted that:-

“Boot had no responsibility or obligation in respect of any element of the design of the piled walls previously prepared by others with the sole exception of Article 8.1.4. This is because the provisions which imposed upon Boot responsibility in relation to Contractor’s Designed Portion required only that Boot complete the design. It did not require that Boot re-visit the design prepared by others. The extent to which Boot were required to complete the design was identified in the Supplementary Appendix which provided that Boot were to provide working drawings.”

71. Mr. Bowdery submitted:-

“Boot’s obligation to design the piles and the contiguous pile wall would necessarily have included a duty to check the adequacy of any preliminary designs by others whether they were adopting or not any part of that preliminary design.

Boot had the right to develop any design for the piled walls provided they complied with the required load-bearing capacities and complied with the minimum requirements for deflection.

Furthermore Boot had an obligation to report any defects or deficiencies or any possible defects or deficiencies in the designs of others such as might be apparent to an experienced and competent contractor. In any event if, contrary to the Third Defendant’s primary submissions, HB had considered that the design of the gaps between the contiguous piles was not their responsibility and the gaps were unsuitable – in the absence of special measures or otherwise – to safely retain the ground behind them Boot should have notified the claimant or the architect of their concerns.”

72. In my judgment the analysis for which Mr. Baatz and Miss Doerries contended is misconceived for the reasons given in answer to issue B1. I accept the analysis of Mr. Bowdery in the first two paragraphs of his submissions which I have quoted in the preceding paragraph. Whether Boot should have reported any deficiencies in the design of the piled walls which it took over is a question which I do not consider should be addressed in the absence of evidence that there were deficiencies and what those deficiencies were.

B3 Was the obligation to warn pursuant to Article 8.1.4 relevant to HB’s design responsibilities?

73. Mr. Baatz and Miss Doerries accept that the obligation to warn existed under the Contract, but contend that it is not relevant to any of Boot’s other design obligations.
74. Mr. Coulson submitted that a clear duty to warn arose.
75. Mr. Bowdery submitted that the answer to this issue was “No – but the obligation to warn pursuant to Appendix 8.1.4 is relevant to HB’s design responsibilities.” I suspect that the negative was not intended in view of the comment which followed it.
76. I accept the submission of Mr. Coulson in fact made initially in the context of issue B1, but repeated in relation to this issue, that on proper construction of Clause 8.1.4 of the Appendix to the Contract the obligation to warn there set out applied both in the case in which the relevant design work had not been undertaken by Boot and in the case in which it had. That said, if Boot had complied with the obligation in the first part of Clause 8.1.4 in relation to design work which it had itself undertaken, it is difficult to see any real scope in practical terms for the application of the obligation in the second part of the clause.

C1 What were HB’s responsibilities in respect of the carrying out and completion of the construction of the piled walls?

77. In their written submissions dated 21 May 2002 Mr. Baatz and Miss Doerries contended in relation to this issue:-

“Boot’s responsibility in respect of the carrying out and completion of the construction of the piled walls was to carry out the works but subject to the fact that they were entitled to take as given what was said in the [Terra Tek] Report. Further or alternatively, Boot were entitled to recover under Clause 2.2.2 if the conditions actually encountered on site differed from those described in the [Terra Tek] Report.”

Those submissions are in fact simply an echo of the general position adopted on behalf of Boot concerning the impact of the Terra Tek Report.

78. Mr. Coulson in his written submissions dated 20 May 2002 drew attention to a number of responsibilities which he contended had been assumed by Boot under the Contract in relation to the construction of the piled walls. He started by referring to the obligation under Clause 2.1 of the Conditions to carry out and complete the Works in accordance with the “Contract Documents”. He then proceeded to the obligations of Boot in respect of the execution of temporary works, referring to Bill No. 1 Section A36 item 120. He mentioned again a duty to warn and the obligation under Bill No.1 Section A34 item 120 to accept responsibility for the stability and structural integrity of the Works. He also referred in the context of this issue to the provisions of Bill No. 2 items 701 and 702 which Mr. Bowdery drew to my attention in the context of issue A3.
79. Mr. Bowdery’s submissions in relation to issue C1 in his written submissions dated 17 May 2002 were:-

“Boot were responsible for constructing and completing the contiguous pile wall works such that they would provide safe and effective support to the excavation when this was undertaken. This responsibility included for temporary propping any other “special measures” to ensure that the retained material was contained behind the contiguous pile wall.

Boot had a responsibility to take into account the effects of groundwater which was anticipated by them to be above the level of the excavation, and proceed with the excavation in a manner that would ensure the safety and integrity of the works during construction.”

80. For the reasons given in considering other issues I reject the submissions of Mr. Baatz and Miss Doerries in relation to this issue. Without in any way intending to indicate that such may be an exhaustive catalogue of relevant obligations, I accept the submissions of Mr. Coulson and Mr. Bowdery in respect of issue C1. Those submissions do not, of course, deal with the important question of entitlement to payment in respect of performance of the obligations identified.

D Are HB entitled to be paid pursuant to Clause 13.2 of the Contract for work consequent upon a change in the prevailing ground conditions from those provided for or which should have been provided for but were not provided for in the Bills of Quantities?

81. Section D of the preliminary issues commences with the general issue which I have set out as the heading to this section of this judgment. There follow twelve further issues. Mr. Baatz and Miss Doerries in their written submissions dated 21 May 2002 have dealt with the issues numbered D1 to D12 inclusive simply by offering one word answers to each part of each issue. Mr. Bowdery has been scarcely more loquacious in his written submissions dated 17 May 2002. Mr Coulson has been somewhat more expansive in his written submissions dated 20 May 2002, but not much. I think that the space devoted to each of issues D1 to D12 inclusive in the parties’ respective initial submissions is a fair indication of the attention which they respectively merit. My consideration of each of them will therefore be rather brief. However, the general issue in section D raises the question whether the “Contract Bills” were prepared in accordance with SMM7. That is an important question and deserves detailed attention. A substantial part of the written submissions of Mr. Baatz and Miss Doerries in reply was devoted to it.
82. Mr. Baatz and Miss Doerries in their written submissions dated 21 May 2002 between paragraphs 36 and 44 inclusive set out their contentions concerning the alleged failures of the “Contract Bills” to comply with SMM7:-

“36. It is clear that the Bills of Quantities do not, in terms, state a pre-contract ground water level (see paras. 41 and 42 below). They have to be corrected so as to do so because that is what Clause 2.2.2.2 and SMM7 D20 P1(a) provides. The pre-contract groundwater level would be approximately 3.2m AOD.

37. Once that correction has been made to the Bills it is to be treated as a variation and an entry made as to the pre-contract groundwater level. The Bills as varied then have to be valued by taking into account the post contract groundwater level – see SMM7 D20.3. In this case that would be approximately 6m AOD.

38. The second omission from the Bills is an item for earthwork support sides of sub-basement excavation supported by contiguous piles below ground water level (SMM7 D20.7.2). This correction has to be made and valued as a variation.

39. The third omission from the Bills is an item for earthwork support in unstable ground (SMM7 D20.7.3).

40. These omissions when fairly valued include the cost of the cofferdam and associated works.

41. If the pre-contract groundwater level can be deduced to be stated in the Bills of Quantities as 3.78m AOD (as CIS suggest at paragraph 49.2 of its Reply) then that was an error in description and had to be corrected and the correction valued as a variation…

42. Even if the above errors were only errors in quantity, they are to be valued in accordance with Clause 2.2.2.2 and because the change in quality has such a material effect ….the valuation under Clause 13.5 and/or 13.8 is to be a fair valuation.

43. In summary:

(a) Whether the Bills of Quantities established the pre-contract ground water level as set out above or whether they failed to establish a pre-contract ground water level the Bills of Quantities are to be corrected in accordance with clause 2.2.2.2 so as to correct the error in the description of the ground water conditions and that correction is to be treated as a variation required by an instruction under clause 13.2 and valued accordingly;

(b) Alternatively the measurement of the works in the Bills of Quantities are to be revised to reflect the post-contract water level by way of correcting errors in quantity and pursuant to clause 2.2.2.2 any such correction is to be treated as a variation required by an instruction under clause 13.2 and valued accordingly;

(c) Alternatively there has been an alteration or modification of the quantity of the works within the meaning of clause 13.1.1 and the said variation was instructed, alternatively the alteration or modification is to be treated as if it were a variation under clause 13.2.”

This ground was traversed again, and somewhat expanded, at paragraphs 94 to 117 inclusive of the written submissions of Mr. Baatz and Miss Doerries in reply.

83. Mr. Coulson accepted in his written submissions dated 20 May 2002 that, by virtue of SMM7 D20 P1(a) the pre-contract water level should be stated in the “Contract Bills” but he submitted that that had been done, the level which could be determined from the “Contract Bills” being 3.43m OD. In support of that submission he originally relied on the expert evidence of Mr. Alan Harris, a quantity surveyor instructed on behalf of CIS, to the effect that that figure could be calculated from the excavations items in Bill No. 3. As I understood it, it was not in dispute between at least CIS and Boot that it was possible by back calculation to derive from the excavations items in Bill No. 3 the groundwater level assumed by whoever had drafted that part of the Bill. Mr. Coulson submitted that in those circumstances the effect of measurement rule M5 in Section D20 of SMM7 was that, if the post contract water level was found to be different from the pre-contract water level, the excavation work was simply re-measured. No question arose of a correction under Clause 2.2.2.2 of the Conditions, and thus there was no question of such a correction being treated as a variation falling within the provisions of Clause 13.2. Mr. Coulson also submitted that as the whole of Bill No. 3 insofar as it dealt with Section D Groundwork was said to be “Provisional” the quantities which were given in relation to any item in that section were “Approximate Quantities” for the purposes of Clause 13.4 of the Conditions and thus there could be no error in them. Rather all were subject to re-measurement under Clause 13.4. Consequently once more there was no question of any need for any correction under Clause 2.2.2.2 which would fall to be treated as a variation under Clause 13.2. Further, submitted Mr. Coulson, insofar as any complaint was made about any failure to include some item relating to earthwork support or some error in the quantities stated in relation to earthwork support, earthwork support fell within the “Contractor’s Designed Portion”, and by Clause 2.2.2.3 of the Conditions the correction of any error in description or in quantity in items falling within the “Contractor’s Proposals”, which should be regarded as relating to the “Contractor’s Designed Portion”, fell to be corrected but without such correction entitling Boot to any addition to the Contract Sum. He submitted that I should construe the references in the Contract to the “Contractor’s Proposals” not in accordance with the definition of that expression in Clause 1.3 of the Conditions but as referring to Boot’s “ proposal” evinced by entering into the Contract that it would undertake the “Employer’s Requirements”. In relation to any item in respect of earthwork support which was not specifically described in the “Contract Bills” he submitted that I should find that it was covered by the reference in Bill No. 1 Section A20 to the “Contractor’s Designed Portion” and/or by the reference in Bill No. 1 Section A30 item 250 to costs relating to items not priced being included elsewhere in the Bills and/or by the reference in Bill No. 1 Section A34 item 120 to stability and/or by the reference in Bill No. 1 Section A44 item 250 to additional temporary works items. Mr. Coulson contended that the important thing was that in each of these places Boot had had an opportunity to price any item of earthwork support not covered elsewhere.
84. Mr. Baatz and Miss Doerries submitted that the expression “provisional” where it appeared in Bill No. 3 Section D had no particular significance contractually and was not to be treated, as Mr. Coulson did, as equivalent to an indication that the quantities to which it related were “Approximate Quantities”.
85. In his oral submissions Mr. Baatz contended that the submission of Mr. Coulson that I should treat any earthwork support item not specifically described in the “Contract Bills” as included by one or more of the general items to which Mr. Coulson drew attention was inconsistent with the General Rules of SMM7, specifically Rule 1.1 and Rule 2.9. Any item which needed to be priced, submitted Mr. Baatz, was required to be described specifically and the subject of measurement rules.
86. Mr. Bowdery did not make any submissions in respect of the general issue arising under section D of the preliminary issues. He did, however, in relation to the issues formulated as D7, submit that the “Contract Bills” did not establish the pre-contract groundwater level, but that the effect of Clause 2.2.2.4 of the Contract was that it was for Boot to establish that level.
87. In my judgment the critical question in relation to the submission of Mr. Baatz and Miss Doerries that the “Contract Bills” did not state a pre-contract groundwater level is whether that is so or not. There seemed to be no difference between CIS and Boot as to the consequences of there not being a statement of a pre-contract groundwater level, if that was indeed the case. It does not seem to me that the requirement in SMM7 Section D20 P1(a) that:-

“The following information is shown either on location drawings under A Preliminaries/General conditions or on further drawings which accompany the bills of quantities or stated as assumed:

(a) the ground water level and the date when it was established, defined as the pre-contract water level”

is satisfied just because it may be possible by analysis of the detail of the Bill to calculate what groundwater level must have been taken. In my judgment the force of the provision which I have just quoted is that an actual level has to be stated, together with the date when it was established. On no view can it seriously be contended that an analysis by calculation provides the date upon which the pre-contract water level was established. It seems to me, therefore, that the requirements of the provision which I have just quoted were not complied with in relation to the Contract. I reject the submission of Mr. Bowdery that they did not have to be. If his submission were correct it would involve the terms of Clause 2.2.2.1 being qualified to the effect that those provisions did not apply in respect of any matter in respect of which Boot was deemed to have satisfied itself by virtue of the terms of Clause 2.2.2.4. I see no warrant for any such qualification.

88. While I accept that the expression used in Clause 13.4.1 of the Contract, and defined in Clause 1.3, is “Approximate Quantity” and not “Provisional Quantity” what it seems to me the definition of the expression “Approximate Quantity” in Clause 1.3 of the Contract requires for something to be an “Approximate Quantity” is simply that it should be identified in the “Contract Bills” “as an approximate quantity”. That obviously can be done by using the expression “Approximate Quantity”, but the substance of the requirement, it seems to me, is simply that it should be clear that the quantity is not intended as an accurate indication of the likely quantity. A quantity described as “provisional” is, in my judgment, so identified.
89. I reject the submission of Mr. Coulson that any error in description or quantity in the “Contract Bills” in relation to earthwork support falls to be dealt with under Clause 2.2.2.3, rather than under Clause 2.2.2.2. It seems to me that, there being no identified “Contractor’s Proposals” for the purposes of the Contract, one cannot simply treat Clause 2.2.2.3 as if the reference there to the “Contractor’s Proposals” in fact read “work forming part of the Contractor’s Designed Portion”, or something similar. Under the Contract the two concepts of the “Contractor’s Proposals”, on the one hand, and the “Contractor’s Designed Portion”, on the other, are different.
90. I also reject the submission of Mr. Coulson that if any item of earthwork support was not specifically described in the “Contract Bills” it should be treated as covered by one of the general, or “line”, to use his terminology, items to which he referred. In my judgment it is plain from the terms of General Rule 2.9 of SMM7 that it is only where an applicable measurement rule is identified in SMM7 in respect of an item that that item, where it appears in a bill of quantities, falls to be priced. No measurement rule is identified as applicable in relation to any of the Sections of Bill No. 1 upon which he relied, so none of those Sections was the appropriate place in which to allow a price for earthwork support which ought to have been, but was not, fully described in Section D20 of Bill No. 3. In a case in which a provision like Clause 2.2.2.3 of the Conditions is applicable and there are “Contractor’s Proposals” and a “CDP Analysis” it would seem that there are no practical consequences of bills of quantities not including properly described items covering work within the “Contractor’s Proposals” or the “CDP Analysis”. However, the JCT Form seems to contemplate that strictly items falling within those areas should be included within the bills of quantities. Thus, if they are not, in the absence of “Contractor’s Proposals” or a “CDP Analysis” upon which Clause 2.2.2.3 of the Conditions can bite, the consequence is that Clause 2.2.2.2 applies.
91. In the result it seems to me that the answer to this issue as formulated is affirmative. It remains to consider whether the “Contract Bills” in fact omitted the items in relation to earthwork support upon which Mr. Baatz and Miss Doerries sought to rely.

D1 Was Section 3 of the Contract Bills entitled Sub-Structure – D Groundworks measured as “Provisional”?

92. All parties agree that the answer to the issue as formulated is affirmative. Mr. Baatz and Miss Doerries in their written submissions dated 21 May 2002 in relation to this issue made the point which I have already considered that quantities described as “provisional” are not to be treated as equivalent to “Approximate Quantities”.

D2 If so, is this section of the work subject to re-measurement?

93. It follows from what I have already said that the answer to this issue is affirmative in relation to any item of work specifically identified in the Bill. Any omission from the Bill falls to be dealt with under Clause 2.2.2.2 and Clause 13.2.

D3 Did Clause 2.2.2.1 of the Main Contract provide that the Contract Bills had been prepared in accordance with SMM7?

94. All parties agree that the answer to this issue is in substance affirmative, although Mr. Bowdery correctly made the point in his written submissions dated 17 May 2002 that Clause 2.2.2.1 did contemplate departures from SMM7 if it was specifically stated in the “Contract Bills” that there was a departure.

D4 Did Clause 2.2.2.2 of the Main Contract provide that if there was any departure from the method of preparation referred to in Clause 2.2.2.1, namely SMM7, or any error in description of quantity or omission of items, then such departure or error or omission shall be corrected, and any such correction shall be treated as if it were a variation required by the instruction of the Architect under Clause 13.2?

95. All parties agree that the answer to this issue is affirmative, although Mr. Coulson in his written submissions dated 20 May 2002 identified three qualifications reflecting his submissions in relation to other issues included within the preliminary issues with which this judgment is concerned.

D5 Was Drawing A301A identified in the Preliminaries of the Bills of Quantities and did it accompany them?

96. All parties agreed that the answer to the first part of this issue is affirmative. I am not sure that the answer to the second part matters, but only Mr. Baatz and Miss Doerries addressed it in their written submissions. They submitted that the answer to this part was also affirmative. I am prepared to assume that they are correct in that submission.

D6 Did the Drawing contain the statement of “for the prevailing ground conditions refer to the April 1994 Report”? And did it accordingly show the pre-contract ground water of the order of 3.5 to 4m OD?

97. Although the words in inverted commas are not an accurate rendering of the words actually used, which I have set out earlier in this judgment, it is agreed by all parties that the answer to the first question is in substance affirmative.
98. Mr. Baatz and Miss Doerries submitted that the answer to the second question was affirmative, while Mr. Coulson submitted that it was negative. For the reasons given earlier in this judgment I accept the submission of Mr. Coulson on this point.

D7 (a) Assuming that the Bills established the pre-contract groundwater level as set out and that the actual was about 6m OD should the Bills be corrected in accordance with Clause 2.2.2.2 so as to correct the error in the description of the groundwater conditions? Should this correction be treated as a variation under Clause 13.2?

(b) Alternatively if the Bills failed to establish a pre-contract groundwater level should the Bills be corrected in accordance with Clause 2.2.2.2 so as to correct the error in the description of the groundwater conditions? Should this correction be treated as a variation under Clause 13.2?

99. Issue D7(a) seems in fact to be a reflection of the general issue arising in section D. Mr. Baatz and Miss Doerries submitted that the answer to both questions in issue D7(a) is affirmative. Mr. Coulson submitted that the answers are negative. Mr. Bowdery submitted that all the issues under D7 miss the point, but they could only be answered in the negative.
100. On the assumption, which I find to be false, that the “Contract Bills” did comply with the requirements of SMM7 Section D20 P1(a) in respect of stating a pre-contract groundwater level, in my judgment the consequence of the level stated being incorrect was that the excavation was required to be re-measured in accordance with measurement rule M5, not that a correction fell to be made under Clause 2.2.2.2 which would be treated as a variation under Clause 13.2. The answer to each of the questions raised by issue D7(a) is therefore negative.
101. Given the findings which I have set out in relation to the general issue under section D of the preliminary issues the answer to each of the questions arising under issue D7(b) is affirmative.

D8 (a) Should the measurement of the Works in the Bills be revised to reflect the post-contract water level of about 6m OD and accordingly corrected in accordance with Clause 2.2.2.2? Should this correction be treated as a Variation under Clause 13.2?

(b) Should the measurement of the Works in the Bills be revised to reflect the post-contract water level of about 6m OD by correcting the errors in quantity and accordingly corrected in accordance with Clause 2.2.2.2? Should this correction be treated as a Variation under Clause 13.2?

102. Mr. Baatz and Miss Doerries submitted in their written submissions dated 21 May 2002 that the answer to each question in D8 (a) and (b) is affirmative. Mr. Coulson submitted that the answer to each question is negative. His position remained that the appropriate action was re-measurement. Mr. Bowdery repeated his submissions in relation to issue D7. In the light of my conclusions in relation to issue D7 I do not consider that any further answer to any question in D8 is required.

D9 Assuming that the Bills were prepared on the basis of stable soil conditions and that unstable soil conditions were encountered, should the earthwork support element of the Bills be likewise corrected and should this correction likewise be treated as a Variation under Clause 13.2?

103. Mr. Baatz and Miss Doerries submitted that the answer to each question posed in respect of this issue is affirmative. Both Mr. Coulson and Mr.Bowdery submitted that the answer to each is negative. Mr. Coulson added that the assumption underlying the question was wrong. He initially submitted that for the purposes of measurement rule M10 earthwork support below ground water level or in unstable ground are alternatives, although in his written submissions in response he did not pursue this point. He submitted that in any event General Rule 2.6 of SMM7 did not require any reference to unstable ground in the circumstances of this case, and unstable ground, as defined by definition rule D8 in Section D20 of SMM7, was not present at the Property.
104. It seems to me that the answers to the questions posed depend critically upon whether the assumptions contended for are correct. Consequently, the questions strike me as too theoretical for any useful purpose to be served by answering them at this stage.

D10 Assuming that there has been an alteration or modification of the design and/or quantity of works in that the works which were carried out were different from the works in the Bills and the said Variation was instructed by GMA, should the works be valued under Clause 13.1.1? Alternatively is this alteration or modification to be treated as a Variation under Clause 13.2?

105. In their initial written submissions Mr. Baatz and Miss Doerries contended that both questions should be answered in the affirmative, although in their written submissions in reply they accepted that “it is difficult to deal with this issue without determining the facts”. Mr. Coulson and Mr. Bowdery initially submitted that both questions should be answered in the negative. In his written submissions dated 20 May 2002 Mr. Coulson elaborated upon the position of CIS by submitting that the issue was convoluted and unrealistic. He identified what he contended were the various component elements in the issue and set out CIS’s case in respect of those components as follows:-

“1. Assumption 1: “Alteration or Modification of the Design

HB were responsible for the design of the CDP. That included the bored pile walls and the earthwork support. That is dealt with in detail in Section B2 above. After the soil loss event [that is to say, the occurrence on 13-14 March 1996], their design was changed to one that would work. That change was their responsibility and that change was brought about by their failure to comply with the obligations outlined at Section B1 above. There can be no liability on the part of CIS as a result of the alteration or modification by HB of their own design.

2. Assumption 2: “Alteration or Modification of Quantity of Works

This assumption is not understood. For the reasons set out above, there would be a re-measurement provisional/approximate of the excavation items. On the primary case, there would be no re-measurement of the earthwork support element, because of Clause 2.2.2.3. If, contrary to that case, there was such a re-measurement it would be under Clause 13.4.1. This is because the earthwork support items in the Bills were also provisional/approximate.

3. Variation Instruction

The issue describes the alteration/modification of HB’s design and the change in the quantity of works as comprising “the said Variation”.

For the reasons previously given, this is not right. A change in design necessitated by HB’s breach of contract would be to their account. Re-measurement of any relevant quantities would arise under Clause 13.4. Neither of them give rise to a Variation under Clause 13.2.

It is accepted that HB have an entirely separate case on the facts that in April/May 1994 there was a Variation Instruction. It is understood that HB will also argue that this Variation Instruction somehow overrides their breach of contract and effectively exculpates them for the consequences of that breach. All of that is to be dealt with at the trial in November. That is not part of these Issues and CIS do not deal with them.

4. Clause 13.1.1

This reference is not understood. Clause 13.1.1 is concerned with defining what a variation might be, and is not concerned with valuation. As previously noted, the relevant valuation clause here is 13.4 or 13.8: re-measurement of approximate/provisional quantities.

5. Clause 13.2

It is not understood what the issue of principle is under Clause 13.2. Re-measurement of provisional/approximate quantities does not given rise to a variation under Clause 13.2. Neither does an alteration or modification by HB of their design in order to ameliorate the consequences of a breach of contract. Thus the only point left is the issue of fact, namely whether, as a matter of fact, a Variation Instruction was issued. That is for trial in November, and is not the subject of the Preliminary Issues.

However, there is possibly one point of principle which, if disputed, may require a decision now. Clause 13.2.1 deals with instructions requiring a variation. However, that clause is very significantly amended at 1/3/166. The amendment states as follows:

“Provided that, in respect of the Contractor’s Designed Portion, any such instruction shall be a statement of an alteration to or modification of the Employer’s Requirements”.

In other words, in order to be a variation under Clause 13.2 to either the bored pile walls or the earthwork support (both of which are within the CDP), a Variation Instruction must be issued by the Architect which expressly altered the Employer’s Requirements. That is the only way in which such an instruction could trigger a variation under Clause 13.2; it could only be a Variation if CIS wanted to change the Employer’s Requirements and if the Architect expressly instructed a change to those Employer’s Requirements. The Employer’s Requirements are set out above. HB have no pleaded case of any sort that there was a change to those Employer’s Requirements. In those circumstances, there can be no variation under Clause 13.2 in any event.

5. Breach of Contract

Further and in any event, if HB were in breach of contract, for the reasons set out under Issues A-C above, then there could be no Variation in any event. The remedial work that they carried out as a result of their breaches of contract were their responsibility and would not entitle them to additional monies.”

106. The issue as formulated is very difficult to understand. The words used seem to amount to something like, “assume that an instruction was given for a variation under the Contract – in that event should the works carried out in pursuance of such instruction be valued as a variation?”. That question is obviously not a sensible one to pose in practical terms. Thus it is plain that the issue has to be fleshed out by adding some supposition as to what the imagined variation related to. That is what Mr. Coulson did in the passage from his written submissions which I have just quoted. If his understanding of what underlies the issue as formulated is correct, he may well be right. However, for the present it does not seem to me that any useful purpose would be served by me expressing any view on issue D10. By the time at which oral submissions were made to me Mr. Baatz, Miss Doerries and Mr. Coulson accepted that it was not appropriate for me to answer issue D10 at this stage. Mr. Bowdery declared himself agnostic on the point.

D11 Should the sub-structure groundwork Bill be corrected or revised in accordance with Clause 2.2.2.2 so as to correct the omission of the earthwork support to the faces of the excavation where contiguous piles have been installed? Should this correction be treated as a Variation under Clause 13.2?

107. In their written submissions dated 21 May 2002 Mr. Baatz and Miss Doerries answer both of these questions in the affirmative. Mr. Coulson and Mr. Bowdery answer both in the negative.
108. In his written submissions Mr. Coulson set out these reasons for the answers to this issue for which he contended:-

“1. The Bill

This issue is based on the false premise that the Bill omits earthwork support to the faces of the excavation where contiguous piles have been installed (namely the North, West and South walls). This is quite wrong. As previously noted, Item G on page 483 deals with earthwork support to the sides of the basement excavation which were not supported by the contiguous piles. There was therefore no omission. Furthermore, the Bill expressly allowed HB to price for this if they considered it necessary and deemed the work to be allowed for in the Contract Sum. All the points at Section 9.2 above …. are repeated.

2. CDP/Temporary Works

In any event, whatever the Bill said, the provision of earthwork support was a CDP item and a temporary item and was HB’s responsibility in any event. There can be no variation in respect of the CDP work or temporary works. HB had to design and construct whatever temporary works and earthworks support they believed were necessary. They are not entitled to a Variation where they were in breach of contract.”

109. At paragraph 159 of their written submissions dated 11 June 2002 Mr. Baatz and Miss Doerries countered Mr. Coulson’s submissions which I have set out in the previous paragraph as follows:-

“CIS submit that Bill No. 3 page 305 Item G …relates to the interstices between the piles on the north, west and south walls as well as to the east wall. This is not so. The plain meaning of sides of basement excavation not supported by contiguous piles is a reference to the east wall because that is the only side not supported by contiguous bored piles. It is intrinsic to contiguous bored piles that the soil between the piles arches and so is supported by the piles on either side of it.

As Mr. Wallis’ report shows the quantity entered, 88m² relates to the length of the east wall not supported by contiguous piles.

This is consistent with the fact that the Bills of Quantities stated that they had been prepared from the Tender Documents and that the Tender Documents included the Site Investigation Reports.”

110. It seems to me that it would be premature finally to answer the questions comprehended within this issue at this stage. Bill No. 3 page 305 item G strikes me as ambiguous. It could refer to any sides of the basement which were not in fact to be supported by contiguous bored piles – that is to say, including any part of any side along which there were to be contiguous bored piles but which was not itself to be supported by such piles, which is the meaning for which Mr. Coulson contends – or only to those sides which were not to have any contiguous bored piles at all. I confess to being drawn to the latter meaning as the relevant expression is “sides of basement excavation not supported by contiguous piles” and not, for example, “any part or parts of basement excavations not supported by contiguous piles”. I note, of course, also that the word “sides” is in the plural and not in the singular, which is an indication against the view to which I have indicated I feel drawn, if in fact there was only one side which was not intended to be supported by contiguous bored piles. Illumination might be shed on the ambiguity by evidence as to that to which the stated quantity of 88 square metres appeared to relate. The resolution of the ambiguity seems to me to be important because of my rejection of the alternative answers to the issue put forward by Mr. Coulson, namely that the item, if not on proper construction covered by item G on page 305 of Bill No. 3, is covered by more general items within Bill No. 1, and that Clause 2.2.2.2 of the Contract cannot apply to anything falling within “the Contractor’s Designed Portion” because of the terms of Clause 2.2.2.3.

D12. Should the re-measurement under issue D2 above be treated as a Variation under Clause 13.2?

111. Mr. Baatz and Miss Doerries in their written submissions answered this issue in the affirmative. Mr. Bowdery answered it in the negative. The answer given by Mr. Coulson in his written submissions was:-

“This has already been dealt with. Any changes to the earthwork support item do not give rise to any adjustment in the Contract Sum because of Clause 2.2.2.3. If that is wrong such changes fall to be re-measured under Clause 13.4.1.1 and re-valued in accordance with Clause 13.8. The excavation, which is not part of the CDP, falls to be re-measured under Clause 13.4.1.1. Clauses 2.2.2.2 and 13.2 are, in any view, irrelevant.”

112. In the light of my earlier rejection in principle of the first answer provided by Mr. Coulson, and my conclusion as to the effect of the use of the word “PROVISIONAL”, in my judgment the answer to this issue is negative in relation to items specifically included within the relevant part of the Bill, for the alternative reasons contended for by Mr. Coulson.