Neutral Citation no.[2001] NIQB 33
Ref:
COGC3486
Judgment: approved by the Court for handing down
Delivered:
06.09.2001
(subject to editorial corrections)
BETWEEN:
Plaintiff;
Defendant.
COGHLIN J
The building which is the subject of this litigation is situated at the junction of Castle Street and Castle Junction, Belfast and is currently occupied by Primark, although the structure itself is probably familiar to most of the citizens of Northern Ireland as the "Old Bank Buildings". The Bank Buildings constitute an impressive edifice incorporating a number of interesting architectural decorations and features. However, as a result of pollution and weathering over the years a significant amount of deterioration has taken place and by the summer of 1998 this situation had become critical with at least one of the sandstone dentils having become dislodged and fallen onto the public street. In such circumstances, a decision was taken by Primark to arrange for the fabric of the building to be carefully inspected and, where necessary, for appropriate repairs/restoration to be carried out. The overall responsibility for ensuring that this work was satisfactorily performed fell upon Primark's preferred main contractors, Messrs H&J Martin, who were assisted by McAuley & Browne Consulting Engineers. After due consideration H&J Martin decided to appoint the defendant, J Rainey & Co Ltd, a firm of expert steeplejacks specialising in stone and masonry repair and restoration. In turn, in order to gain access to those aspects of the building upon which it was necessary to work, the defendant appointed the plaintiff as a firm specialising in the provision of scaffolding services. This case is concerned with the nature and implications of the relationship between the plaintiff and the defendant in the course of carrying out those operations at the Bank Buildings.
Mr John McGrory, on behalf of the plaintiff, and Mr Paul Rainey, on behalf of the defendant, each confirmed that their respective companies enjoyed high reputations for the quality of the services which they provided throughout Britain and Ireland and both confirmed that they had satisfactorily co-operated upon a number of previous projects. While I have no reason to doubt the degree of professional expertise possessed by either company, it is difficult not to be surprised at the claim to previous successful co-operation in the context of the cost-control practices followed by both in relation to this contract, which ranged from naive to non-existent. By way of example, in the context of difficult working operations which were inevitably likely to vary as the contract progressed, Mr McGrory was unable to recollect whether he had given Mr Rainey an estimate and chose to record his calculations in the form of manuscript notes, while the primary documentary evidence relied on by Mr Rainey was a manuscript note made by his secretary on a letter to H&J Martin. This situation was compounded by the fact that, in my view, neither individual was an impressive or reliable witness with each being quite prepared to present his evidence in a way which he felt was most likely to advance his respective claim. For example, when opening the case on behalf of the plaintiff, Mr Horner QC stated that the work was to be completed in phases and that, at any one time, only one-third of the building was to be scaffolded. The letter of 16 August 1999 from Stevenson Munn, the chartered surveyors engaged on behalf of the plaintiff, referred to 65% as the average amount of scaffolding on site at any one time whereas, in the course of giving evidence, Mr John McGrory maintained that the work was not completed in phases and that 90% of the building was scaffolded at any one time, although this final claim was subsequently modified to 90% from commencement to Christmas. For his part, when cross-examined by Mr Horner QC in relation to the clear contradictions between his evidence and the defence as pleaded, Mr Paul Rainey initially claimed to be "confused and mistaken" and ultimately conceded that, in the event of any conflict, Mr McGrory's rudimentary manuscript notes were to be preferred to his evidence and the defence pleadings.
Doing the best that I can in the circumstances, the following are my findings:
(i) Shortly after the July holidays in 1998, probably not long before 28 July, John McGrory met Paul Rainey at the Bank Buildings where they discussed the nature and extent of the scaffolding that might be required for the work to be carried out upon the building. I am satisfied that Mr McGrory's manuscript note roughly reflects his assessment of what was required to establish scaffolding up to the third string with one level of boards for a distance of 70 metres into Castle Street, 22 metres across the front of the building in Castle Junction and two sections, respectively, of 24 metres and 17 metres in Bank Street. In each case the elevation was to be 19 metres and, using a rate of £2.50 per square metre, to include erection and demolition, Mr McGrory costed this at £6,412. He also noted a rate of hire at £110 per week. John McGrory did not think that he furnished the figure of £6,412 to Paul Rainey, although why he should not have done so remains a mystery since his normal practice was to provide a verbal estimate followed by a fax. Paul Rainey initially gave evidence that he had been given this figure by John McGrory but this was one of a number of matters about which he subsequently became "confused". Ultimately, it probably does not matter a great deal.
(ii) A second meeting took place between John McGrory and Paul Rainey prior to the commencement of scaffolding work on 20 September 1998. Paul Rainey thought that this meeting took place in the coffee shop at the Bank Buildings on 10 September 1998, the day after a meeting which he had attended with the main contractors and the Department of the Environment. I think that such a meeting probably did take place and that, again, John McGrory's two pages of manuscript notes probably accurately record what was discussed and agreed. These notes show that, since the previous meeting, the scaffolding requirements had become more complex and now included netting, additional height at the front and two returns, scaffolding access to two chimneys, additional boarding to take account of three levels at the front and two at each side as well as hoarding. When these additional requirements were priced and added to the cost of the original single lift scaffolding John McGrory noted a total of £13,852 which he was prepared to reduce to a final quote of £12,000. This figure was subsequently communicated by John McGrory to Paul Rainey on 16 September 1998 and recorded, apparently by Mr Rainey's secretary, on the letter of 15 September 1998 from J Rainey & Co Ltd to Messrs H&J Martin Ltd.
I am satisfied that John McGrory's calculations and the figure of £12,000 represent what I shall term the "basic agreement" between the parties relating to the provision of scaffolding services at the Bank Buildings. I am also satisfied that all the relevant parties appreciated that this was the type of contract in which it was almost inevitable that the requirements of the work would change as the contract progressed, but I do not consider that any changes took place which were of such a fundamental nature as to frustrate this basic agreement. Accordingly, I reject the suggestion put forward on behalf of the plaintiff that his claim should be re-measured on the basis of a quantum meruit. No explanation was forthcoming from either party as to why the plaintiff did not supply the defendant with the calculations upon which his quotation was based nor why those same details were not sought by the defendant. Whilst this might be little short of amazing in the context of a contract which had already radically altered since the last meeting between the parties and which was almost certainly likely to manifest further changes as it progressed, such a basic omission seems to have been fairly typical of the way in which these two firms conducted their business relationship.
In October 1998 the plaintiff and the defendant discussed and agreed the erection of scaffolding and protective netting in order to work at the two chimneys in Castle Street together with two of the chimneys at the Castle Junction aspect of the building as well as the clock face. I find the agreed figure to have been £4,500 as recorded by John McGrory's memorandum of 20 October 1998 and, in so far as it conflicts with this document, I reject the suggestion by Paul Rainey that a discounted figure of £4,000 was ultimately agreed.
Against this background, I now proceed to consider whether the plaintiff is entitled to be paid in respect of any items of work not included in the basic agreement and the additional scaffolding operation referred to in the note of 20 October 1998.
(a) The covered pedestrian tunnel and protective fan
It is clear that by the date of his letter to Messrs H&J Martin Ltd of 15 September 1998 Paul Rainey had agreed to provide, inter alia, a boarded tunnel running the complete length of Castle Street and a protective fan to be fitted at approximately the third lift in Castle Street and Bank Street and just above the hoarding in Castle Junction. It is the defendant's case that the figure of £12,000 quoted by the plaintiff was to include the tunnel, protective fan and all netting. The manuscript calculations produced by the plaintiff in support of the figure of £12,000 do not make any specific reference to the provision of a pedestrian tunnel or protective fan and the reference to hoarding contained therein seems to be to a single skin some 40 metres in length which was to be fixed and removed upon two occasions, presumably as the phased work progressed.
In the course of his evidence Mr Rainey maintained that at the meeting with John McGrory, shortly after Mr Rainey had spoken to the Department of the Environment, he informed him of the requirement for the protective fan, netting and tunnel. In the course of giving evidence Mr Rainey went on to assert that if "… you bring in a professional scaffolder you expect him to respect CDM (Construction (Design and Management) Regulations (NI) 1995) and provide adequate netting, hoarding and protective fans". I consider that this was simply a transparent and rather ineffective attempt to shore up his evidence and, again, I prefer to rely on Mr McGrory's manuscript note. I also accept the evidence of Mr Donaghy, the plaintiff's foreman scaffolder, that he was contacted by Paul Rainey on Monday 21 September 1998, the day after scaffolding had commenced, and requested to provide three rather than one "skin" of hoarding along Castle Street. Mr Donaghy confirmed this request with John McGrory. I also accept Mr Donaghy's evidence that Paul Rainey first requested full length safety netting and a protective fan on Tuesday 22 September. Mr Donaghy again confirmed these instructions with John McGrory and the appropriate work commenced on Wednesday or Thursday of that week. Consequently, I am satisfied that the plaintiff is entitled to be paid for the erection, removal and rental of the extra hoarding in Castle Street and Bank Street as well as the materials required for the protective fan in Castle Street, Castle Junction and Bank Street and the lift of boards forming the roof of the tunnel in Castle Street. The appropriate rates are to be derived from those contained in the basic agreement. I also accept the evidence of Mr Bell, the defendant's expert, which was not effectively challenged, that these rates should be subject to the same 13.37% discount which John McGrory was prepared to offer to Paul Rainey on the global sum. I also accept the evidence of Mr Bell that the linear metre approach is appropriate for the protective fan calculation and, in the circumstances, I allow his figure of £897.72.
(b) Additional hoarding
This item has been agreed between the parties at a figure of £4,140.16.
(c) Traffic light at Castle Street/Castle Junction
The competing claims in respect of this item are £288, which is the plaintiff's figure, as opposed to the defendant's figure of £72. The £288 seems to be a "round" figure quoted by John McGrory whereas the defendant relied upon the evidence of Mr Donaghy that the work would have taken two men two hours to complete. My own note of Mr Donaghy's direct evidence is not so specific as to time and he does not appear to have been cross-examined in detail on the point. Mr Donaghy did describe how it was necessary to alter the scaffolding in order to prevent an obstruction to the traffic lights by stripping out a standard and substituting a ladder beam at this point. He said that this was a specialised task which took twice as long as normal scaffolding and required at least two or three men to manhandle the ladder beam. In the circumstances, I am prepared to allow a figure of £175 in respect of this item.
(d) The roller shutter door
It appears that this door, located in Bank Street, was damaged at some stage during the course of the defendant's operations and on 21 January 1999 the defendant wrote to Messrs H&J Martin Ltd in the following terms:
"We have today received a bill for £375 (plus VAT) for the re-erection of scaffolding to fix the roller shutter which was damaged and of which you are aware."
However, in the course of responding to the plaintiff's claim, the defendant sent a fax on 28 March 1999 in which he assessed the scaffolding required to carry out this task as 20 metres at £6.08 a metre or a total of £121.60.
In the course of cross-examination Mr Paul Rainey claimed to have received a telephone quote of £150 from the plaintiff's son, Stephen McGrory, in respect of this piece of work. He said that the balance of the sum of £375, the figure which he ultimately claimed from the main contractors, was in respect of repairs to the door but he was unable to produce any invoice or other documentary support for the £375 nor was he able to satisfactorily explain how he proposed to charge the main contractors for damage caused by his own operations. I formed the clear impression that this aspect of the defendant's evidence had no real substance in fact and was simply an attempt to obtain an additional profit from the main contractors. In my view this was clearly an additional piece of work and I propose to allow the plaintiff a figure of £150 which the defendant's expert, Mr Bell, conceded was reasonable.
(e) The additional two domes and two chimneys
The parties respective experts were agreed that £450 was an appropriate figure for the erection and dismantling of the scaffolding to the two additional chimneys and I am satisfied that the evidence, particularly the photographs produced, show that less scaffolding was required in relation to the domes. Accordingly, I will allow a figure of £150 in relation to erecting and dismantling the scaffolding at each dome. A figure of £80 was agreed to be reasonable in respect of hire of this scaffolding for one week. When the total figure of £1,280 is discounted by the relevant 13.37% a figure of £1,108.86 is produced which I propose to allow.
(f) Additional netting
I preferred the evidence of Mr Bell, the defendant's expert, as set out at paragraph 8 of his response to Mr Kearney's list of additional work and I propose to allow a figure of £209.64, which is Mr Bell's figure discounted by 13.37%. In the course of completing his manuscript notes in September 1998, John McGrory estimated the two areas in Bank Street as being, respectively, 17 metres x 2 metres and 24 metres x 2 metres. However, it is quite clear from his earlier note of 28 July 1998 that the relevant figure for height in these two areas should have been 19 metres. No satisfactory evidence was given to account for this discrepancy and, in the circumstances, I am satisfied that it was simply a mistake on the part of Mr McGrory in respect of which he is not entitled to be compensated by the defendant.
(g) Additional scaffolding at the top rear of Bank Street and Castle Street
During cross-examination Mr Paul Rainey accepted that in each of these areas there was additional scaffolding amounting to approximately 108 square metres. In such circumstances, it seems to me that Mr Kearneys figures of £801.36 in respect of erecting, dismantling and hiring the boards and scaffold at each of these locations is appropriate and, after applying the 13.37% discount, I shall allow a figure of £1,388.44.
(h) Additional hire of original scaffolding
The manuscript notes prepared by Mr John McGrory prior to the construction of the scaffolding referred to a hire period of 6 weeks. When asked about this figure Mr McGrory denied that he had been given the period of 6 weeks by anyone else and said that he produced it simply "as a guide to get a price". He later said that his firm thought that, initially, they would be "on site for 6 weeks" and that it should have been a "quick operation". However, Mr McGrory also conceded that he appreciated that the scaffold would have to be cleared from the Castle Junction aspect of the building by Christmas and that it was "reasonable" for Mr Rainey to assume that the scaffold would be in position until Christmas. The memorandum of 3 September 1998 prepared by McAuley & Browne, consulting engineers, noted that the program would extend "… over a period of 12 weeks with completion not later than Friday 4 December". On the other hand, Paul Rainey, who was in attendance at that meeting wrote to the main contractors on 15 September 1998 noting "duration time to be approximately 6 weeks …". While it is possible that the latter may have been the estimate for Area 1, this may afford some explanation as to how the period of 6 weeks came to be quoted by John McGrory.
In the course of compiling his calculation in relation to this item Mr Bell relied upon specific periods of time derived from notes kept by Mr McGrath, who was Paul Rainey's site supervisor. However, these notes were prepared by Mr McGrath as a record of labour and costs relating to the work being carried out by Mr Rainey's employees. Mr McGrath conceded that he had not been recording the nature and extent of the scaffolding at any particular time and that he was simply deducing what that was likely to have been from his timesheets, the photographs and his own memory. He agreed that, in at least one respect, it was impossible to reconcile his notes with documents prepared by Paul Rainey for submission to the main contractor.
In such circumstances, I prefer the more general approach adopted by Mr Kearney on behalf of the plaintiff and I shall adopt his formula for the 6 weeks prior to Christmas:
The parties seem to be generally agreed that the great bulk of the scaffolding had been removed by 17 December 1998 and from that date until the contract finished on 13 January 1999 it seems that there was only one relatively small area of scaffolding in Bank Street – illustrated in the drawing as Area 5. I accept Mr Bell's figure of 288 square metres for this scaffolding and, applying the rate of 13p per metre for 4 weeks results in a figure of £149.76 with an overall total of £1,618.81. After the percentage discount is applied this produces £1,402.43 in respect of this item.
(i) Erection and dismantling of additional boards
I am satisfied that two additional levels of boards were required across all five areas of the building constituting the "protective lift" in conjunction with the fan and the "killer boards". Using Mr Bell's figures I would cost these at £1,082.50. To this must be added the cost of erecting and dismantling an additional level of boards for the windows along the Castle Street and Castle Junction facades. Mr Donaghy did not think that such an extra level was necessary at either of the Bank Street locations. Page 54 of Section 4 of Trial Bundle 1 contains manuscript notes made by Paul Rainey relating to "additional points to scaffold". The second item on this page reads as follows:
"Additional level of boards required mid-section front and both sides as instructed per Mr Browne: required to carry out repairs to stonework inclusive of hire to 6 December 98 £595."
In the circumstances, I propose to allow this figure making a total of £1,677.50 or £1,453.20 after applying discount.
(j) Hire of additional boards
I propose to adopt Mr Bell's figure of £802.80 for the hire of the two additional levels of boarding namely, the killer boards and the protection level adjacent to the fan. This produces a figure of £695.47 when discounted. I have already allowed for hire of the boards giving access to the windows in the figure of £595 quoted at paragraph (i) above.
In all, this produces a total sum of £11,621.42. When added to the £16,500.00 made up by the basic agreement and the additional items of 20 October 1998 the plaintiff's entitlement ultimately becomes £28,121.42. The addition of £4,921.25 in respect of 17.5% VAT produces £33,042.67. The plaintiff has received £25,967.50 inclusive of VAT to date and the outstanding balance is £7,075.17 which I award by way of damages.
BETWEEN:
Plaintiff;
Defendant.