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

IN THE HIGH COURT OF JUSTICE
Technology and Construction Court

		St Dunstan's House, 131 – 137 Fetter Lane , London, EC4A 1HD
		13 July 2007

Judge Thornton QC:

            1.         Introduction

1.              Claim and counterclaim.           This dispute is about Engine Control Units ("ECU") used in racing cars. The defendant, Life Racing Limited ("LRL"), designed and supplied ECUs to those who raced or manufactured racing cars and the claimant, Mr Roger Benfield, who traded as Autoroute Circuits ("Autoroute"), advised on the design of the layout of printed circuit boards ("PCBs") used in two successive versions of the ECUs, the F88.v.1.0 and F88.v.1.1 versions. Autoroute therefore provided advisory and design services for LRL between November 2002 until April 2004.
2.              LRL contends in these proceedings that Autoroute's services were provided negligently and in breach of contract, principally because the circuit layouts that resulted from these services caused impedance and interference that resulted in continual albeit intermittent malfunctioning of the PCBs and ECUs. This in turn caused the racing cars that these components were servicing to malfunction intermittently and to run erratically. LRL was a new business at that time and it was attempting to break into the racing car market.  Its principal claim is based on its contention that it lost orders and was unable to develop and expand its business in a highly competitive and volatile market. LRL now claims its losses, which are principally its alleged loss of profits from its lost turnover, that it contends resulted from Autoroute's alleged negligence and breaches of contract. These claims are pursued in a counterclaim to Autoroute's more modest claim for alleged outstanding and unpaid fees. LRL's claims are for approximately £250,000 and Autoroute's claim is for £14,100.   
3.              Liability only.    At the parties' request, the trial was confined to questions of liability so far as LRL's claims are concerned and to Autoroute's claim in its entirety. This agreement was initially given effect to by an order made on 9 December 2005 that discovery, witness statements and experts' reports should be limited to the ten technical issues that the parties' experts had agreed were the relevant technical issues. The parties proceeded thereafter on the basis that the first trial would be limited to these issues. Subsequently, the parties added to and varied these technical and it also became clear that the parties disagreed as to the terms and scope of the contract and as to whether Autoroute had advised LRL without reasonable skill and care. However,    no further order was made so as to redefine the scope of the first trial but the parties prepared for it on the basis that it would be confined to liability only.
4.              However, it emerged during the trial that further principal issues related to the question of whether LRL's loss of turnover claim was too remote from any proved breach of duty to be recoverable and, if it was not, whether it fell within Autoroute's scope of duty. The parties had not discussed, before trial, whether that issue of causation was to be considered as being encompassed within the scope of the first trial as to liability. Because the parties were not ready to embark on a trial of that issue, I confirmed during the trial that the issues as to foreseeability and scope of duty, if they arose, would be decided in a second trial with any outstanding quantum issues.
5.              Issues.   The trial involved a determination of these issues:

A.  The V.1.0 Design

(1)               What were the relevant terms of the contract or contracts whereby Autoroute agreed to provide professional services to LRL?

(2)               What services did Autoroute perform for LRL?

(3)               Did Autoroute perform any of its services in breach of duty or contract?

(4)               Why did the ECUs fail?

(5)               Were any relevant causes of failure themselves caused by any breach of duty or contract by Autoroute? 

(6)               Was the relevant cause of failure foreseeable?

B    The V.1.1 Design

(7)               What services did Autoroute perform for LRL?

(8)               Did Autoroute perform any of its services in breach of duty or contract?

(9)               What damage did Autoroute cause?

C   Damages

(10)           What must LRL prove in order to recover loss and damage?

(11)           What part of Autoroute's claim is recoverable subject to LRL's counterclaim?

D   Procedure

(12)           What remains for determination?

6.              The trial.           At the trial, the following witnesses gave evidence. Autoroute called Mr Roger Benfield. LRL called Mr Peter Scrimshaw, LRL's systems designer of the ECUs;  Mr Michael Lancaster, a Director and the majority shareholder of LLR; Mr Maurice Apthorpe, Chief Executive of Brynleigh Technologies that assembled the component parts of the PCBs; Mr Mark Colby, LRL's embedded software designer of the ECUs; Mr Sean Peck, a track support technician; Mr Alistair Craig, a track support technician; Mr Jeremy Rygate, Engineering Manager of Stevenage Circuits who manufactured some of the relevant PCBs; and Mr Martin Morell, Group Technical Director of DDI, who examined the V1.1 design and provided LRL with technical comments about it.
7.              Witness statements made by witnesses who were not called to give oral evidence were also served on behalf of Autoroute by Mr Christopher Bunce, who was Quality Engineering Manager at DDI who manufactured some of the relevant PCBs and on behalf of LRL by Mr Adrian Phipps, LRL's Company Secretary and Mr Stephen Dumelow, an LRL track support engineer.
8.              The two experts, Dr Christopher McArdle who was called by Autoroute and Mr David Sykes who was called by LRL, then gave their evidence after all the oral factual evidence had been completed. The principle disputes in this case were heavily dependent on the evidence of these two expert witnesses and, for each of these disputes, the two experts took opposing views. It was therefore necessary to form an overall assessment as to the reliability, expertise and professional judgment of each of them. This was possible given the enormous quantity of written evidence and the thoroughness and considerable competence of the cross-examination of each by opposing counsel. An overall assessment of all this material led me unhesitatingly to conclude that, on any relevant dispute of technical detail or professional opinion, Mr Sykes' evidence was to be preferred to Dr McArdle.

2.      Factual Background

2.1       ECUs and PCBs

9.               The dispute is concerned with difficulties arising from malfunctioning ECUs that were supplied by LRL and installed in racing cars. An ECU is one kind of electronic system designed to control a mechanical system. The ECU in a racing car is designed to control its engine and its principal functions are to monitor the many variables affecting the running of the car, to provide data to trackside technicians for laptop analysis for use in identifying engine faults and malfunctioning and to signal commands to parts of the engine that are provided by the driver and by radio commands from the trackside technicians and their computers. 
10.              In a racing car, the ECU is located in a box within the engine. It is essentially an electronic system made up of an electronic circuit or circuits containing electrical components linked together by connections to enable electric current to pass round each circuit and through its component parts and linked or connected to each part of the engine it is to control. The number of component parts is such that they have to be laid out on boards in a way that ensures that the greatest possible area of each board is covered to the greatest possible density that is consistent with the optimum performance of the system. These boards are fitted together in layers to make up a PCB which is, when made up, the principal component of the ECU. 
11.          The PCB in a racing car needs to be as light and compact as possible and it contains many different circuits and electrical components. The PCB is, therefore, manufactured in a number of layers placed one on top of each other and the wiring linking the circuits travels from layer to layer through holes known as vias. These vias come in three different types, a through via which is a hole drilled through all relevant layers, a blind via which enables connections to be made from the outside layers to layers within the PCB and a buried via which enables connections to be made from a buried layer to another buried layer. The layers are glued together to create the PCB.

     

      2.2.            PCB Design and Manufacture

2.2.1.   General

12.          LRL's role.       LRL was a new company that was set up in 2000 to provide the electronics arm to its associated company, Advanced Engine Research Limited ("AER") which had been set up in 1998 to design and manufacture motor racing car engines. Racing car engines rely heavily on electronically driven engine management systems, or ECUs whose principal component is a specially tailored PCB. Thus, a racing car's ECU is entirely reliant on a particularly complex PCB which is, in general terms, the heart of an electronic product which is to work closely, or even symbiotically, with a mechanical product. A PCB's overall functions can include those of engine control, monitoring and recording and also diagnostic work associated with engine performance. In a car engine setting, the ECU will communicate with trackside engineers by radio and with their specially programmed laptops. Thus, in this case, the PCB had a particularly prominent role since it was to provide the heart of an engine management system for a highly specialised car racing engine.
13.          PCB development.        The PCB is created by a complex series of inter-actions between a series of designers, manufacturers and assemblers. For commercial viability, PCB production requires a rapid development time and PCBs should be able to be manufactured speedily and reliably. Once manufactured, PCBs must be highly reliable throughout its working life and must be capable of functioning in challenging environments. In consequence, a structured design process is required for a PCB to enable it to be successfully developed and then produced.
14.          Design engineer.          The development of an electronic product is controlled by a design authority, to use the terminology of electronic product technology. Often, the design authority will nominally be a company or an organisation but there will usually be an individual who is nominated to be the person who takes on the role of the design authority. The design authority has overall responsibility for successfully delivering a marketable electronic product of the kind envisaged for use in association with the requisite mechanical product. The role involves preparing and drafting the specification of the product, being in this case an ECU, in conjunction with those responsible for the design and production of the associated mechanical system, being in this case a racing car engine. The design authority also has an overall co-ordinating role in relation to the design, development and production of the electronic product.
15.          Specification.    Within LRL, the person taking the decisions that had to be taken about the overall design of the PCB, being the decisions required of the design authority, was Mr Scrimshaw. He was also the electronics engineer providing the electronics input into the design. The first stage of the design of a PCB involves the drafting of a specification. This defines what the PCB is to do and the working conditions under which it is to operate. The specification will also elaborate on such technical matters as the required number of input and output channels and the details of the processor and its memory systems. Since the intention in 2002 was for the PCB to be developed in conjunction with the car engine being developed by AER, Mr Scrimshaw liaised closely with the mechanical engineer working on this engine development in order to ensure that the mechanical and electrical systems were fully integrated so as to provide for optimised engine performance.

2.2.2.   First Stage Development

16.           General.           The first stage of PCB development involves those responsible for the paper design of the PCB working on that design using, as their starting point, the specification. In the case of LRL's development of this PCB, those people were the electronics engineer, Mr Scrimshaw; the software specialist, Mr Colby, who was concerned with the software, code and digital hardware components of the ECU; and Mr Michael Lancaster, who was concerned with the reliability and manufacturability of the PCB; Mr Benfield, who was concerned with the design and layout of the PCB; and Mr Rygate, who was the prospective PCB manufacturer who was needed to provide the parameters within which the manufacturer would be able to manufacture the individual layers of the PCB and provide boards that could be readily assembled by the company who would be undertaking their assembly. Thus, the design engineer was working in a team concerned with the development of the composition and layout of the PCB electronic circuitry, the design and layout of all that was to be included in and inserted on the PCB, the selection and writing of the necessary software and the mechanical design and selection of the necessary mechanical parts.
17.           Schematic or circuit diagram and net-list.      As part of this design work, Mr Scrimshaw produced component data sheets and drawings of the electronic circuit, being the circuit or schematic diagrams. This circuit design will depict the electronic components including the microprocessors, memory devices, resistors, capacitors and inductors and the PCB itself. This information will be used by the PCB designer to produce a net-list or footprint library, a computer-generated list of how the components are connected to each other. The design authority will also provide any instructions that are needed to define any feature of the PCB which must be provided such as board dimensions, thicknesses, materials and finishes and dialectic separation. At an early stage, the intended manufacturer will produce a set of so-called design rules which define the limits to which the manufacturer can reliably make the proposed PCB. These rules refer to such matters as the minimum track widths, inter-track lengths, via sizes and aspect ratios that had to be incorporated into the design.
18.           Software.          The necessary software was written by Mr Colby. He also provided key assistance in the selection of the digital hardware components. This selection was made with the intention of providing proper and satisfactory implementation within the PCB and the larger engine management system and the devices to be incorporated into that system from other manufacturers. The development of the hardware was in the hands of Mr Scrimshaw.
19.           Dual sourced.   It was always LRL's intention that the PCB would be dual-sourced, that is that it would be manufactured, or capable of being manufactured, by at least two separate companies. This consideration was one of those that resulted from LRL's twin overall concerns that the PCB should be readily capable of being manufactured and that the cost of production should be such that the end product would attract customers in this highly competitive market at a relatively low price which retained a sufficient commercial margin when the PCBs were sold. 
20.           Design development during first stage.         The PCB consists of a number of layers or boards joined together with a honeycomb of through, blind and buried vias within them. The manufacturer etches onto the boards the various circuits, channels and components.  The PCB designer has to provide what is essentially a map of the layout of the system that has been identified on the design authority's schematics and net-lists. The PCB design must show for the PCB as a whole, for each individual layer and for each connection between layers, the layout of every part of each circuit making up the electronic system being provided for. This layout must show for each board or layer the positions of all connections, components and channels both on and between layers. The final design will therefore show the system designed by the design authority on the schematics and the net-lists as it will be laid out on the finished PCB.
21.          This design work requires the PCB designer to use the manufacturers' design rules. In the course of this design work, the PBC designer will prepare computer-generated layouts using the schematics, footprints, design rules and other instructions as his guide. The process is not a clear cut series of steps since the electronics and mechanical engineers will be continuing with their design development. Some of the necessary decisions are shared or joint decisions. For example, decisions as to the type or types of via and other components used in the PCB layout, the number of boards and the overall size of the PCB are decisions into which the electrical engineer, PCB designer and PCB manufacturer will all contribute in varying degrees depending on the nature of the PCB being designed. During the development of the design of the circuit, there will be repeated interaction between the electronics and mechanical engineers and the PCB designer, manufacturer and assembler.
22.          Everyone, certainly on this PCB design process, had to work under great pressure and to a very tight deadline which was dictated by the timing of the start of the racing season in March of each year. Towards the end of the PCB design process, the PCB designer undertakes an ECO update which is intended to check the PCB design against the schematics and, following this, indicates to the design engineer that the PBC design is ready for "flooding". This leads to the design engineer producing Gerber sheets which are produced by computer and which change the design shown on the screen into a language that the manufacturer's photo plotter will understand and will use to draw the patterns and etch the shapes onto the boards to create the printed circuit boards. 
23.          Once the PCB manufacturer has been provided with the gerber files, the manufacturer will undertake a design rule check which checks by an automated process whether the layout information contained in the gerber files conforms to the manufacturer's design rules. Following that check, a price is produced that takes account of all the information supplied to the manufacturer. 

2.2.3.   Second Stage Development.

24.          Once the price has been accepted by the design authority, the PCB manufacturer then manufactures a number of prototype PCBs which are assembled by the company that has been engaged for this purpose by the design authority. There is then an iterative process whilst the PCB passes between the electronic designer, the PCB designer and the manufacturer of the PCB boards and is tested for quality, reliability, manufacturability and functionality and is subject to modification. The PCB will usually be put together or made up by a different company so that the PCB is designed and manufactured by a triumvirate of designer, component manufacturer and installer. Once the prototypes have been manufactured, they are rigorously tested in their intended final form, a process known as bare board testing. These so-called beta units are particularly tested for conformity with any necessary national and international standard. 

 3.        The F88 v1.0  Design

3.1.            What were the relevant terms of the contract or contracts whereby Autoroute agreed to provide professional services to LRL?

25.          Background to Autoroute's engagement.       Mr Lancaster started his career as an Electronics designer in the film industry but moved into engine electronics in about 1987 when he and an associate set up a new company, Pectel Control Systems Ltd for the purpose of the design and manufacture of electronic engine management systems for the automotive industry. This business expanded and had a significant customer base. The particular area of specialisation was the motor racing industry. From the start, Mr Benfield, through his business Autoroute, worked for Pectel as a PCB designer and designed the PCBs used for a number of ECUs which Pectel successfully marketed. In 1998, Mr Lancaster and Mr Phillips set up AER as an engine design and manufacturing company to work with Pectel in designing and manufacturing motor racing engines and their associated ECUs and in 1999, Mr Lancaster became the sole owner of AER whilst Mr Phillips became the sole owner of Pectel. In 2000, Mr Phillips sold Pectel out and the close working relationship between Pectel and AER ceased. As a result, Mr Lancaster re-launched LRL. This company had not been trading for several years to any great extent and was one AER's company secretary had an interest in. Mr Lancaster was able to take this company and relaunch it as an electronics business in April 2002. His intention was that LRL would supply ECUs, engine and chassis wiring harnesses and track and support software as the electronics arm of AER. Mr Lancaster persuaded a number of the former employees of Pectel to join LRL. These included Mr Scrimshaw, a systems hardware designer, and Mr Colby, a systems designer concerned with software implementation. 
26.          LRL's business plan involved it in producing one initial reliable and well-performing ECU which could be seen to provide improved and more reliable performance that those manufactured by LRL's competitors. In consequence, the decision was taken to concentrate LRL's resources on this new product. This was named the F88, a name derived from the number of electrical contacts available from the Bosch connector that they decided to use for this initial product. Mr Lancaster considered that the successful marketing of the F88 ECU was, from the outset of LRL's re-launched existence, critical for LRL's future.
27.          The motor racing season runs from March to October each year. During the season, everyone is exclusively focused on the season's racing activities. At the end of each season, each team will review its activities during that season that has just finished discussing improvements and modifications and generally planning for the next season. Each team will have one budget and this is traditionally spent in the short three-month period between December and February following the autumn end-of-season review. It was therefore vital for the F88's successful marketing that it was proved and tested and ready for purchase by teams in the marketing window for the 2004 season. That allowed LRL about 20 months, including the racing seasons in 2002 and 2003, to develop the F88 it was creating including all the testing, revisions and proving that would be needed to allow it to be developed and proved as more reliable and better functioning product than the currently available ECUs.
28.          Mr Scrimshaw started work at LRL on 8 April 2002 and immediately started to work on the F88 design development. Mr Scrimshaw and Mr Lancaster must have had discussions soon after Mr Scrimshaw started to work on the F88 as to who would design the PCB and, given Mr Lancaster had worked for many years with Mr Benfield on ECU developments, they decided to approach him.
29.          PSB designer and technician.  It is helpful to consider at this stage, at a point in time when Autoroute's services were first commissioned by LRL, what is involved in PCB design and why a specialist designer is needed. This will assist in deciding what Autoroute's role was and should have been in the design process of the ECU and its associated PCB.
30.          There are no specific technical qualifications relating to circuit board layout designing and no separate profession or area of technical expertise of printed circuit board design. Furthermore, the two experts and Mr Benfield could not agree as to whether Mr Benfield was a designer or a technician when undertaking his work of defining the layout of the F88 electronic system on the PCB. This disagreement was essentially as to whether a PCB layout designer or technician is merely concerned with the mechanical layout of the system, that is to say has a purely mapping function, or whether he has some additional input, involvement or concern in relation to the effect of the circuit layout on the satisfactory functioning of the circuit and on the manufacturability of the finished product.
31.          Mr Benfield describes himself as a PCB layout technician. He started in this role in 1976. Initially he undertook a PCB course with Marconi and then moved to the BBC in 1979 where he learnt how to use Computer Aided Design ("CAD") techniques which were then being introduced. He was promoted to the position of PCB layout supervisor but left the BBC in 1986 when the BBC Designs Department was broken up. He then set up Autoroute. This has proved to be a very successful  company which is still, essentially, a one-man company. It currently employs one PCB designer in addition to Mr Benfield. This designer had had 12 years' experience working for Marconi Communications as a principal PCB designer and joined Autoroute in April 2003. Although there is no formal qualification for PCB design work and it is clear that the necessary skills set can be acquired from training and experience, Mr Sykes, LRL's expert, explained that the choice of PCB technology has an enormous effect on the behaviour of the electronic circuit and that the design authority will have to rely on the expertise and advice of the PCB designer and manufacturer. The necessary expertise required for the type of PCB design involved in an ECU included a considerable deal of expertise and experience in the layout and working of electronic systems. The overall design of the ECU and its associated PCB would involve a combination of two specialisms working together as a team effort relying on each other's knowledge and expertise. In other words, the two needed to work together in a symbiotic technically based relationship. This general description of the work of a PCB designer/technician fitted very closely with the evidence generally and I accept it as a fair summary of the role and expertise of such a technician.
32.          The summary of Autoroute's role provided by Mr Sykes was backed up by the way that Autoroute described its services in 2002. The nature of the design and technical services provided by Autoroute was clearly set out in a promotional video which was current at the time that LRL made its first approach to Mr Benfield in May 2002 and which could be played by anyone calling in at Autoroute's website. The commentary stated that Autoroute provided the foundation database to all successful electronic designs. It used appropriate software packages and provided a complete documentation package. Autoroute provided a complete comprehensive technical drawing office service in providing one of the most successful PCB design consultancies in the South East of England. Its areas of expertise involved a diverse range of end-use applications and it could demonstrate a proven capability in both multi-layer and high density surface-mounted PCB design. Autoroute also held itself out as providing a comprehensive manufacturing service as part of its design-through-to-assembly capability and it provided a complete, technically-advanced facility to the electronics industry. The company stated that it brought together all of its company expertise and technological capability under one banner.  The video finally referred to LRL's work on behalf of Pectel culminating in the success using Pectel's Control Systems in the 1995 Network Q RAC Rally. Subsequently, further success had been gained in Formula 1 rallying, Formula Ford and the World Touring Car Championships.
33.          Background to engagement.    Mr Lancaster and Mr Scrimshaw agreed, in May 2002, that they would use Mr Benfield as the PCB layout technician. Although they had not worked with him for a time, they had worked with him extensively when they were both at Pectel and they were confident that his expertise in relation to racing car ECUs and their associated PCBs would make him an ideal member of the F88 design and development team that Mr Lancaster was putting together. This initial contact by telephone was made in March 2002. During this call, Mr Lancaster told Mr Benfield that he was intending to design a new range of ECUs and asked him whether he would be available to do the PCB layout work.
34.          The call led first to a meeting between Mr Lancaster and Mr Benfield which was joined after a time by Mr Scrimshaw and then to a meeting attended by  Mr Lancaster, Mr Scrimshaw, Mr Colby and Mr Benfield on 23 May 2002 at LRL's premises. Mr Lancaster also invited Mr Apthorpe from Brynleigh Technology, a circuit board assembler, and Mr Terry Clarke from Stevenage Circuits Ltd ("SCL"), a circuit board manufacturer to this second meeting since he envisaged that these two companies would be involved in the development and production of the F88 generation of ECUs. 
35.          That meeting was the first of a series of meetings, telephone calls and exchanges of information culminating in the contract being entered into in November 2002. Because the LRL team were used to working with Mr Benfield, no formal contract was entered into. Instead, the group evolved an understanding of the type of PCB which would be required. It is clear from the evidence that these discussions proceeded on the basis that the PCB that was required had to be suitable for manufacture and capable of being manufactured by at least two different manufacturers on a cost-effective and commercial basis. Furthermore, the PCBs would be used in an ECU installed in a racing car and it had to be reliable when used over the whole of its usable lifespan.
36.          Before the relevant contract was entered into, LRL instructed Autoroute to undertake two relatively small separate commissions. In June 2002, Autoroute was commissioned to create a number of drawing sheets and on 14 August 2002, it was commissioned to create a dedicated PCB footprint library
37.          F88 v1.0 PCB design contract.            The relevant contract was entered into on 1 November 2002. Mr Benfield's description of this contract in his evidence is one which LRL agreed with and is one which I conclude accurately identifies the contract and its express terms. Mr Benfield stated:

"On 1 November 2002, a separate contract was entered into for the start of a new ECU PCB layout named LR ECU, this became the F88 v1.0. The contact was to lay out a PCB based on my normal design quotation of £2.00 per pin; this contract had no time scale or agreed finish date."

38.           The reason why the start date for this contract was accepted to have been 1 November 2002 was because that was the date on which Mr Scrimshaw sent Mr Benfield an email stating that the design files containing the necessary data sheets and layout drawings were being sent to Mr Benfield. This data was what Mr Benfield needed to start his design work.
39.          Given the simplicity of the contract, the precise scope of the services to be performed and the existence and extent of a number of essential terms need to be ascertained by reference to the essential background and commercial purpose known to both parties. It is therefore necessary to consider what was discussed and agreed and what passed between Mr Benfield and Mr Scrimshaw in the period leading up to the contract.
40.          Proposed ECU.  Mr Scrimshaw and Mr Benfield had worked together many times in the past and Mr Benfield was very much aware of the somewhat informal method of working that Mr Scrimshaw had adopted. In particular, Mr Scrimshaw did not produce, in conformity with best Design Authority practice, a written specification.    Both men had developed a working practice whereby the specification evolved in discussion between them. This practice had been adopted whilst Mr Scrimshaw was still working for Pectel and the two had collaborated on design development.
41.          When the two first met in May 2002, their meeting followed a relatively brief introductory meeting between Mr Benfield and Mr Lancaster which Mr Scrimshaw joined. During these two meetings, Mr Benfield learnt of LRL's outline plans. In particular, he learnt that LRL was breaking into the ECU motor racing market. Its plan was first to develop a new ECU with its associated PCB to be known as the F88, a name derived from the 88 electrical contacts that were required for use with the Bosch connector that Mr Lancaster had decided to use. This new ECU would be sold to the motor racing market as a product that bettered its rivals for reliability, performance and cost. It would be used to produce so-called spin-off products. The F88 would not use advanced technology but it would be designed so as to be capable of fulfilling the objectives that Mr Lancaster had set for it. It was hoped that the product would be generally available for the 2004 season. Mr Benfield accepted that he was aware that the PCB, as an essential part of this product, was intended for use in ECUs that would be installed in racing cars and that it would have to be reliable and capable of being manufactured commercially in a cost-effective manner by at least two different manufacturers.
42.          At some stage before the contract was entered into, Mr Benfield learnt that LRL intended to use a new type of micro processor and a new memory chip that both used a Multi Pin Micro Ball Grid Array ("BGA").  The BGAs use very small 4 and 6 pin arrays involving high density track routing of the connections to the pads of these devices. These connections are arranged in a grid from the pads. This creates acute problems of routing away from the devices, whether over the surface of a board or through the PCB. Mr Benfield had not designed a PCB layout that involved use of BGAs before.
43.          Summary of LRL's Contentions.         The critical decisions in this case were the decision to incorporate BGAs into the ECUs, the decision to use blind and buried vias to connect to these BGAs and the various decisions which determined the layout of these connections. LRL contends that the decision to use blind and buried vias was both inappropriate and negligent. Moreover, it was one taken solely by, and was entirely within the responsibility of, Mr Benfield. The use of blind and buried vias inevitably led to manufacturing and operating problems. Moreover, there were other more appropriate methods of routing away from the BGAs that were available which would not have caused the problems that occurred that caused the unduly high failure rate of the ECUs in both manufacture and operation. 
44.          Implied Term as to Suitability.            LRL contended that Autoroute's contract contained an implied term that the PCB and its layout would be fit or suitable for the purpose of being suitable for commercial, reliable and cost-effective manufacture.   This implied term arose from the agreed basis or criteria of the contract that were agreed between Mr Benfield and Mr Lancaster and Mr Scrimshaw before the contract was entered into and as a result of Mr Benfield knowing that LRL would be relying on Autoroute's skill and judgment in undertaking the PCB layout design work.
45.          The background to the contract was, as already set out, that Autoroute was not supplied with a written specification and that the outline or parameters of the circuitry and the conditions under which it was to be manufactured and operated would be identified in an informal manner during their on-going pre-contract and post-contract  inter-relationship. The agreed intentions with regard to the PCB's manufacturability were, on this basis, part of the much wider range of matters which the two would work together to articulate as the PCB's working specification.
46.          It follows that Autoroute were not working to a defined purpose but were, instead, assisting in a collaborative effort to identify the basis of the layout design of the PCB which Mr Benfield would then design. In that process of collaboration, Mr Benfield contributed advice, design services and his extensive technical knowledge of the mechanical side of circuit layout on PCBs. This included such matters as the method, design and manufacture of the component parts of the routing required on and through the PCB. This was the provision of professional services in a conventional manner, albeit a professional expertise which has not previously come before the courts. It is rare for the supply of professional services of this kind to attract the term of strict liability related to achieving a stated outcome. That is what is required when professional services are subject to a contractual requirement to provide an end product which is fit for its purpose. The contract would need to spell out the outcome that was desired and its surrounding circumstances would have to point to the parties' clear understanding that the professional, such as Autoroute, was offering to achieve an outcome for LRL rather than to provide it with a PCB layout design.
47.          In fact, the outcome was not clearly or fully agreed before the contract was entered into and there was nothing that occurred that pointed to Autoroute effectively guaranteeing that a particular outcome would be achieved. Furthermore, it was not obvious what if anything LRL was relying on Autoroute for.
48.          It follows that the necessary ingredients underpinning the implication of an implied term of fitness for purpose into a contract to provide professional services were not present and the contended for implied term never arose.
49.          It also follows that this engagement for the provision of professional services was subject to the conventional implied terms requiring Autoroute and Mr Benfield to exercise the ordinary degree of skill and care in undertaking the necessary design work that is to be expected of a PCB layout designer undertaking PCB layout design.

.           3.2.      What relevant services did Autoroute perform for LRL?

50.          Blind and buried vias.               The PCB is used to support and connect together electronic components to form a circuit. The circuit board is "printed" because a layer of copper is deposited or printed on the surface of the board and then etched to form the series of tracks that connect together the components forming the circuit. PCBs have been miniaturised and the components have short flat legs that connect to these copper tracks. The tracks are routed from one side of the board to the other by drilling holes and plating them. These holes are known as vias. Where it is necessary to combine a number of thin PCBs together by lamination, to obtain enough surface space for the desired number of components and tracks, the some of the vias have to pass through a number of layers. These PCBs had 12 layers. The holes are usually drilled and there are two kinds of hole. Blind vias pass from the top down to an inner layer whose surface provides the bottom of the via. Buried vias are holes which pass from an upper inner layer to a lower inner layer. Both kinds of via are made either by drilling through the whole depth required and then assembling the drilled layers to the undrilled layers or by drilling individual layers and then piecing them all together so that the holes in each layer marry up with complementary holes in lower or higher layers.
51.          The BGA devices have their connections to the device arranged in grid patterns on each pad connecting them to the board. These connections have to be routed away from the pad and the grid arrangement which is difficult because of the lack of space between connections for tracks to pass through. The solution adopted by Mr Benfield was to route the connections away from the pad to blind and buried vias and to use these to route the connections to lower levels. The alternative method was to drill interstitial vias through the PCB. These are much smaller diameter vias but they enable a more direct route for the connections to be provided and they also enable a much simpler and less crowded series of surface tracks to be routed over the surface of the PCB. However, until recently, accurate drilling of these much smaller diameter interstitial holes was not possible.
52.          The essential requirement of any circuit is that it must not generate impedance or resistance. The former occurs when components are so closely situated to each other that they interfere electrically with each other. Resistance occurs when the holes are bridged or blocked, particularly during manufacture or when connections are ill formed or contain holes or bubbles. Resistance is also more likely where the connections contain a significant number of bends or changes of direction, which can happen if the layout of the shallow blind and deeply buried vias is not carefully configured. A further cause of resistance can be when unduly closely located connections are provided since these can give rise to imperfections due to the difficulties in manufacturing miniature circuits that are laid out in complex configurations in confined spaces.
53.          It was accepted by both experts that an essential feature of a well-designed PCB is that it was designed using the KISS or "keep it simple stupid" principle. In this case, when boiled down to its essentials, the critical question is whether the ECUs malfunctioned because the PCBs were unduly susceptible to high resistance induced by the difficulties of manufacturing blind and buried vias in association with the BGAs in routing patterns which were uneven and, in critical locations, of unduly high density thereby causing resistance and impedance and, whether, if so, Mr Benfield was negligent in adopting this technique or whether he should have used an alternative technique such as interstitial routing. Mr Benfield asserts that his use of blind and buried vias was appropriate, that this technique did not cause undue resistance, that it was for Mr Scrimshaw to decide whether the chosen design was such as to lead, or risk leading, to resistance, that and that, in any case, the cause of the mechanical and other malfunctioning was not via induced resistance.
54.          The decision to use blind and buried vias.      Mr Benfield stated in evidence that the decision to use blind and buried vias was taken at one of the first meetings he attended in May 2002. He contended that this decision was taken in conjunction with the decision that the vias would be connected to the pads of components, a so-called via in pad solution. These decisions, taken in principle without knowledge of the schematics that LRL would be preparing of the circuit, were necessitated by the need to make the PCBs as small as possible, a requirement of Mr Scrimshaw. The decision also appears to have been necessitated in Mr Benfield's mind, certainly in December 2002, by LRL's use of BGAs of the sizes stipulated by LRL since the interstitial via arrangement needed vias with very small diameters and which Mr Benfield believed were too small to be commercially manufactured using the techniques then available. The actual decision to adopt blind and buried vias was taken by Mr Scrimshaw.
55.          LRL contend that the erroneous design adopted by Mr Benfield was a combination of two factors, namely that blind and buried vias were adopted for use to provide routes for the BGA connections in association with a routing away from those BGAs in a lopsided configuration which led to the connections leaving the BGAs in the same direction. What LRL contended was that Mr Benfield should have used interstitial vias with  connections leaving the BGA evenly and radially. 
56.          It was clear from the evidence that Mr Benfield decided on the number of layers, albeit that the decision was largely dictated by the size of the components that had to be accommodated within the PCB and also decided on the use of blind and buried vias. No final decision about such a use could have been made until after the contract had been entered into. The routing technique to be adopted, including the decision as to the use of vias including their type, number and location, were all matters for the PCB layout designer. They were not essentially matters for the electronic engineer, certainly in the design relationship that Mr Scrimshaw and Mr Benfield had created for themselves and during the design both Mr Scrimshaw and Mr Benfield knew that this aspect of the layout design was a matter entirely to be decided on by Mr Benfield.
57.          What is also clear is that Mr Benfield was of the opinion that the smallest via size that could safely be manufactured was one of 25/1000 of an inch. This was significantly larger than the largest interstitial via size that could be used, being 16/1000 of an inch. Mr Benfield therefore would not have considered using vias other than blind and buried vias so that he might well have considered from the moment he was first consulted that blind and buried vias would be needed. However, a design decision to this effect could not have been taken until Mr Benfield was aware of the entirety of the schematics provided by Mr Scrimshaw and was also aware that LRL was specifying the use of BGAs. It is clear from the written evidence that Mr Benfield was not informed of the use of the relevant sized BGAs, being the 0.75 and 0.8 mm pitch sizes, until 13 September 2002 and did not receive the V1.0 schematic until 4 November 2002.
58.          This led Mr Benfield to inform Mr Scrimshaw in an email on 9 December 2002:

"As you have now used 0.75mm and 0.8mm pitch BGAs the design will have to be blind and buried vias as the normal size via will not fit inside the pads."

This wording is not compatible with a firm decision having already been taken to use blind and buried vias. 

59.          Mr Benfield, in his evidence, insisted that this email was merely confirming a decision already taken.  I cannot accept his evidence. Mr Benfield's evidence comes to this. At the first meeting, or at one of the first meetings, that he had with Mr Scrimshaw before Mr Scrimshaw had undertaken anything other than initial rudimentary design work on the proposed circuitry, a firm decision was taken that all routing between layers would adopt the blind and buried via technique and that the vias would connect with the components on the PCB using a via in pad technique. Thus, when BGAs were introduced in September 2002, the decision as to how to route away from the complex array of connection points from these very small components had, in effect, already been taken by Mr Scrimshaw, who had taken that decision following a suggestion to that effect from Mr Benfield some months earlier. There is no evidence of that decision having been taken at all prior to December 2002, and certainly no evidence of it having been taken by Mr Scrimshaw on any occasion.
60.          Mr Benfield was, in reality, putting forward this suggesting routing technique for the first time in December 2002 whilst he was actively undertaking the PCB design work and was, as I find, putting it forward as the only method he could think of for providing the necessary connections for the BGAs. In his mind, the smallest diameter all through via that could be manufactured was 25/000 of an inch and the largest diameter via that the BGA could accommodate was about 16/000 of an inch which he understood would break the proposed manufacturer's design rules, was not safely practicable and was not achievable using currently available manufacturing methods.
61.          It is also clear that Mr Benfield gave no thought to the need to avoid bunching of the channels routing the connections away from the BGAs towards their intended blind or buried via. This was because he had not worked with BGAs before and never stopped to consider whether the apparently complex and dense configuration of connections was readily capable of being manufactured or unduly susceptible to manufacturing errors.

3.3.            Did Autoroute perform any of its services in breach of duty or contract?

62.          Necessity to use a blind and buried design.    The basis of Mr Benfield's design was his belief that the minimum manufacturable size of via was one whose minimum size was a diameter of 25/1000 of an inch and that such a use was a necessity in the light of the overriding instructions given to him by LRL that the PCB should be as small as possible. Mr Benfield was informed at an early stage in the design process that Stevenage Circuits were the preferred manufacturer. Mr Rygate gave evidence, which was not significantly challenged, that for the thickness of board that was used, a through via of a size of down to 16/1000 of an inch would have been possible. Had the board been thicker, a larger minimum size would have been needed. Mr Rygate also stated that he could not remember informing Mr Benfield, as Mr Benfield asserted, that the minimum size that Stevenage Circuits could have produced was 25/1000 of an inch. Mr Rygate's evidence is consistent with the contents of the then current Stevenage Circuits brochure and with Mr Benfield's other evidence in which he stated that he never obtained Stevenage Circuit's design rules. Indeed, Mr Benfield was clearly relying on his historic knowledge of what minimum drilled size was possible and had not kept up to date with the advances in mechanical drilling which had, in recent years, allowed for a significantly smaller minimum size.
63.          It follows that there was no necessity to use a blind and buried via in pad design. It was possible to use a interstitial all-through via with a size of down to 16/1000 of an inch.
64.          It was clear from the evidence of Mr David Sykes, LRL's expert, which he supplemented with models to provide ocular evidence of these views, that it was possible to route the connections from the BGAs in regular radial configurations so as to use to the full extent the so-called real estate, or open board space, in close proximity to these components. This evidence was not significantly challenged by Dr McArdle, Autoroute's expert. He did contend that Mr Sykes had not actually provided a layout which demonstrated his view but a much more regular radial-based configuration was achieved by the designer of the 1.1 version of the F88 following the termination of Autoroute's engagement in 2004. This termination occurred after LRL had become increasingly dissatisfied with Autoroute's performance in the face of continuing operational difficulties of the 1.0 version through the 2003 racing season and LRL's repeated attempts to reconfigure the circuit so as to eliminate them. This demonstrated the obvious fact that there was no reason in principle for the connections leading from the BGAs to be bunched together in selected sectors of the real estate bordering those components.
65.          Nature of Autoroute's professional service.               LRL contended that Autoroute was, in deciding on the use of blind and buried vias, providing advice to LRL which LRL accepted and relied on to its detriment. The service that Mr Benfield was providing was more akin to the design services provided by an architect or engineer in producing working drawings to be used in the construction of physical objects. In Mr Benfield's case, he was working more closely with the overall system designer, Mr Scrimshaw who was the Design Authority or overall designer and design co-ordinator and Mr Scrimshaw could have over-ruled any design decision taken by Mr Benfield. It follows that Autoroute were providing a composite professional service of providing advice as to the layout of the PCBs and as to the design of the configuration that would be needed to implement that advice once proffered. Since Mr Scrimshaw did not have any relevant expertise in PCB layout designs and had always accepted advice on layout from Mr Benfield during their long history of PCB design collaboration, Mr Benfield was aware that advice on such matters as connection routeing and on the ability to manufacture PCBs with particular connection designs would be accepted and relied on by Mr Scrimshaw in his role of Design Authority. 
66.              Nature of Autoroute's services.      Mr Benfield insisted throughout his evidence that he was not providing professional design services but was a technician providing somewhat low-grade advice on how, in a purely mechanical way, a particular series of components and connections could be laid out on a PCB.
67.          This view of Mr Benfield's services was shared by Dr McArdle. However, this view was, on analysis, consistent with the apparently different view contended for by LRL. On LRL's analysis, Mr Benfield was providing a full-blown professional design and advisory service. However, as Mr Sykes convincingly demonstrated, in the field of PCB layout design, there is no obvious distinction between these two apparently different ways of describing Mr Benfield's role. That role is to design a piece of micro-engineering in a way that will enable it to be safely and reliably manufactured at reasonable cost and so as to minimise so far as is possible the size of the PCB consistent with these other overriding requirements.  It is also necessary to provide a circuit layout that, when manufactured, will provide consistently good connections throughout the circuit because any loose or inadequate connection, any imperfection in the connections themselves, such as copper waste globules, air bubbles or breaks or reductions in the connections at corners, will lead to higher resistance or impedance and consequent electronic malfunctioning of the system. Thus, the PCB designer must develop for the circuit he has been provided the simplest layout that is the easiest to manufacture that is reasonably possible. That service is mechanical and technical and does not require any detailed knowledge of electronics but it is, given the microscopic dimensions of the components and the need to rely heavily on CAD techniques, one that involves the provision of professional advisory and design services. 
68.          Lack of reasonable skill and care.      LRL's case, supported by Mr Sykes' opinion evidence, was that Mr Benfield failed in his professional duty in two material respects. Firstly, he wrongly assumed that the PCB had to rely on vias which could not be less than 25/1000 of an inch in diameter and, secondly, he failed to eliminate the crowded and difficult to manufacture configuration of connections away from the BGAs. The first error arose because Mr Benfield had not kept up to date with advances in manufacturing techniques and was unaware of developments which enabled much smaller vias to be safely and reliably manufactured. He was also unaware of the particular problems associated with providing the large number of connections in very confined spaces to BGAs, having never worked with such components previously. This particularly led to the second error.
69.           LRL also contended that these two errors were compounded by two further failures. These were that Mr Benfield never checked with Stevenage Circuits, and in particular with Mr Rygate, what that intended manufacturer's design rules were. Furthermore, he never checked with Mr Rygate his working assumption as to the minimum safely manufacturable via size. Had he checked either or both these matters, as he should have done if he was undertaking his design role in a professional manner, he would have ascertained that a smaller via size was practicable and that would, or should, have led him to reconsider his blind and buried via decision.
70.          Such a reconsideration was necessary because Mr Benfield's blind and buried vias solution, certainly as configured by him, was obviously both cumbrous and difficult to manufacture safely, particularly given the relatively large number of layers required for the relatively large number of components required by the F88 circuit. It would or should have been obvious to Mr Benfield that his proposed layout was neither simple nor easy to manufacture and that a differently configured board using via in pads with through vias with a diameter of down to 16/1000 of an inch and with a radial layout of the BGA connections would provide a layout that would be significantly simpler, significantly easier to manufacture and significantly less likely to produce imperfections, impedances and unwanted resistances during operation.
71.          In short, Mr Benfield was not aware of the state of the art for PCB designs in 2002 – 2004, did not follow basic minimum standards of layout design, failed to follow best practice with regard to liaison with the intended manufacturer and apparently failed to check his design for simplicity, particularly given that he was working with unfamiliar components that posed particular difficulties in that regard.
72.          Mr Benfield, supported by Dr McArdle, sought to refute each of the strands of LRL's case. The first strand of Mr Benfield's case was a factual strand. His evidence was that Mr Scrimshaw instructed him to use blind and buried vias and that Mr Rygate advised him that 25/1000 of an inch was the smallest via that Stevenage Circuits could safely manufacture. Neither Mr Scrimshaw nor Mr Rygate could recollect any occasion on which each gave the instruction or advice that Mr Benfield was contending for and there was no other evidence which supported Mr Benfield's evidence on these matters. Indeed, the only other evidence produced by Mr Benfield were notes he stated he made of the conversation with Mr Rygate but these notes, which were more in the nature of doodles or jottings, did not begin to support his evidence of a conversation with Mr Rygate, let alone one in which Mr Rygate misinformed him of Stevenage Circuits manufacturing capabilities with regard to via size. I have already concluded that Mr Scrimshaw did not instruct the use of blind and buried vias and I also now conclude that Mr Rygate never informed Mr Benfield that 25/1000 of an inch was the smallest via size that Stevenage Circuits could manufacture. Indeed, there is no reliable evidence that these two men ever had a conversation about via size.
73.          Mr Benfield and Dr McArdle then sought to play down Mr Benfield's role to a minor technical draughting role but, as I have already found, his role was, in agreement with Mr Scrimshaw, that of a professional PCB design engineer offering both advisory and design services to LRL. The principal strand to Mr Benfield's defence was that blind and buried vias were a widely accepted method of providing channels between layers on a PCB and their use was not, in consequence, out of step with current professional practice. That contention is good as far as it goes. Blind and buried vias are both used and reasonably used in many locations and in many different situations on PCBs. However, where a particular design solution, in a rapidly changing micro-electronic engineering field, requires simplicity, small diameter vias, boards with multi-layers and a complex layout involving a large number of connections in a small area, there are other ways of laying out the boards which will achieve the required objectives and a blind and buried via solution will achieve none of them. Thus, it was a very significant failure to apply current relevant professional standards which led to Mr Benfield neither considering, being aware of or adopting alternative and much better design solutions. Instead, he adopted without any significant thought or analysis the, for him, tried and trusted but inappropriate blind and buried vias solution. So much so that "blind and buried" became a mantra for both him and Dr McArdle.
74.          In these circumstances, Autoroute, through Mr Benfield, gave negligent advice and adopted a negligently devised and executed design in: (1) not being aware of current manufacturing capabilities with regard to via size; (2) considering that the use of blind and buried vias was both the only possible and a reasonable design decision in relation to BGA connections; (3) not either using or considering the use of all through interstitial vias; (4) not consulting Stevenage Circuits about their design rules and manufacturing capabilities; (5) not taking account of the difficulties of design in the connections for the BGAs, a component he had not worked with before and in not considering how to simplify the design and layout of these connections; and (6) not reconsidering these features of the design when subsequently asked to both modify and redesign, the F88 circuit layout.

3.4.                        Why did the ECUs fail?

75.          LRL adduced much evidence as to the consequences of the negligent design of the PCBs. In summary, it was clear that the PCBs caused the manufacturers and the assemblers difficulties in manufacturing and assembling due to the crowded nature of the layout. The PCBs passed their bareboard testing but the yield, being the percentage of PCBs which operated satisfactorily once installed in the ECUs, were very poor compared to what is generally to be expected. Most of the failures were attributable to problems associated with increased resistance and impedance. Mr Sykes' evidence was to the effect that when PCBs were manufactured at the limit of acceptable design practice, they may frequently pass their bareboard tests but then fail when put into service. His evidence was also to the effect that the layout of the circuit, particularly in relation to the use of blind and buried vias and overcrowded connections from the BGAs, was one that created unnecessary impedance, itself a cause of ECU failure.
76.          The ECUs that went into service proved to be unreliable and were subject to frequent and inconsistent and intermittent malfunctioning which is directly associated with resistance and impedance difficulties. Moreover, the experienced trackside engineers at the time, and with hindsight, attributed these failures to electrical faults engendered by the circuitry of the PCBs. Mr Scrimshaw produced a spreadsheet which identified most of the failures and was able to analyse the majority of these failures as being similarly attributable. Finally, Mr Colby, who is an experienced programmer in the relevant field, was able to explain why the faults, or certainly the majority of the faults, were not attributable to programming difficulties.
77.          Dr McArdle, assisted by Mr Benfield, sought to counter this powerful and mutually consistent body of evidence with the contention that ECU failure can be caused by a large number of different causes and only some of those can be linked to electronic malfunctioning. The PCBs had not destructively tested and it was only very late in the trial that Mr Sykes had examined the relevant layout microscopically and put forward the crowded layout as being a cause of the resistance that occurred. In summary, therefore, they contended that LRL had not established the cause of any of the failures or malfunctioning complained of.
78.          Mr Sykes in his evidence, basing this on the available factual evidence, was able to show that the other possible causes of malfunctioning, except electrical resistance and impedance caused by the layout of the circuits on the PCBs, were either capable of being eliminated or were only improbable causes of malfunctioning.
79.          In conclusion, therefore, I am able to find on the weight of the evidence, and certainly on the balance of probabilities, that the malfunctioning complained of was caused by heightened resistance and impedance that was itself caused by the design of the layout of the circuit in the two critical respects about which complaint is made.

3.5.      Were any relevant causes of failure themselves caused by any breach of duty or contract by Autoroute? 

80.          In the light of my findings, it is clear that Autoroute's breaches of contract and duty were the direct cause of all, or the great majority, of the failures that occurred.

            3.6.      Was the relevant causes of failure foreseeable?

81.          It was clear from the evidence of Mr Sykes, whose evidence on this as on other relevant technical issues, was to be preferred, that it is the common experience of PCB designs that involve complex and crowded layouts and connections that are subject to frequent changes of direction particularly when moving from one level to another, that the circuit is less reliable, more prone to heightened resistance and impedance and that, in consequence, such features of a layout design should be avoided or minimised. This knowledge is available to the PCB layout designer and is not dependant on expertise or detailed knowledge of electronics or electrical engineering. Indeed, anyone of experience in layout techniques, even if without formal professional or academic qualifications in the electrical field, should be aware of these pitfalls. To this evidence, Dr McArdle could give no convincing riposte.
82.          It follows that the relevant causes of failure were foreseeable.

4.               The F88 v.1.1 Design

83.          Following the repeated failures of the 1.0 version of the ECUs, and repeated attempts to modify the software and circuitry, LRL decided to design and produce a new version, the 1.1 version. This was a complete redesign involving many electrical changes which had to be implemented afresh. To this end, Mr Benfield was instructed in July 2003 to undertake the necessary PCB layout design. This work was undertaken between July 2003 and 30 March 2004 when LRL instructed Autoroute to stop work and, effectively, terminated its engagement altogether. For much of that period, Mr Benfield passed the necessary design work to his assistant. Mr Benfield never questioned or reconsidered the use of blind and buried vias or the general technique he had adopted for the BGA connections. Meanwhile, LRL were becoming more and more concerned about Mr Benfield's design work and his capabilities and took advice from various parties. It was these concerns, fed by the advice it received, that led LRL to terminate the engagement and to commission a yet further version, the 1.2 version, before the 1.1 version went into service. It is clear from the evidence now available that had the 1.1 version been continued with, it would have produced similar unsatisfactory yield and performance results as the ill-fated 1.0 version. This result would have occurred, as Mr Sykes convincingly showed, because the 1.1 version incorporated the same unsatisfactory features of Mr Benfield's design as the 1.0 version had done. The electrical changes would have made no difference to the overall capability of the ECU and would have been satisfactorily accommodated had the connections been appropriately designed and laid out.
84.          I conclude that Autoroute performed its services in relation to the 1.1 version in breach of contract and duty, such breaches and the potential consequences being similar to those that prevailed under the 1.0 version. With hindsight, it can be seen that Autoroute was in potential or anticipatory breach of contract which LRL accepted as being repudiatory. That anticipated repudiation was accepted when Autoroute's services were terminated in March 2004.

5.         Damages

85.        All questions of causation, remoteness and foreseeability of damage and loss and any issue as to scope of duty and recoverability of loss have been held over for agreement or a subsequent trial.

6.         Conclusion

86.        I conclude that LRL is entitled to judgment on liability with all questions of damages to be assessed at a subsequent trial if not agreed.

HH Judge Thornton QC