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Covid-19 Protocol: This judgment is to be handed down by the judge remotely by circulation to the parties’ representatives by email and release to Bailii. The date for hand-down is deemed to be 16 March 2021. Case No: HT- 2019 - 000372 Neutral Citation Number: [20 21 ] EWHC 590 (TCC) IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS TECHNOLOGY AND CONSTRUCTION COURT (QB) Rolls Building Fetter Lane London, EC4A 1NL Date of judgment: 16 March 2021 Before : THE HONOURABLE MR JUSTICE FRASER
**Between :
Multiplex Construction Europe Limited Claimant
- and – (1) Bathgate Realisations Civil Engineering Limited (formerly known as Dunne Building and Civil Engineering Limited) (In administration) (2) BRM Construction LLC (3) Argo Global Syndicate 1200 Defendants**
Judgment
Alexander Nissen QC (instructed by Stephenson Harwood LLP )
for the Claimant Lucy Colter and Will Cook (instructed by Weightmans LLP ) for the Third Defendant The First and Second Defendants did not appear and were not represented Hearing dates: 16, 17 and 18 February 202 1
project, and therefore Dunne was instructed by Multiplex to proceed in 2015 too. The identity of the employer is not relevant to this case, nor is the period 2011 to 2015 when the project was on hold.
- The Sub-Contract terms between Multiplex and Dunne are not in dispute. It incorporated the JCT Design and Build Sub-Contract 2005 Edition, Revision 2, 2009, subject to certain modifications. The Sub-Contract contained the following material terms:
- By Clause 2.13.1, Dunne warranted and understood that it had “exercised and shall continue to exercise all the reasonable skill, care, and diligence to be expected of a properly qualified and competent architect or other appropriate designer experienced in designing work of a similar size, scope, nature and complexity to the Sub-Contract Works”;
- By clause 2.13.2, Dunne warranted and undertook that “using the standard of skill, care and diligence set out in clause 2.13.1”: (a) “The various elements of the design of the Sub-Contract Works shall be properly co-ordinated and integrated”; and (b) “The completed Sub-Contract Works shall comply with the Contractor’s Requirements, Statutory Requirements and any performance specification or other requirements under this Sub-Contract”.
- By paragraph 21.16.18; Part 1 of Contractor’s Requirements, and in relation to “Site Safety Environmental Health and Safety Plan”, Dunne stated that it would ensure that all “temporary works and structural work method statements and temporary works design submissions should as a minimum receive a complete and independent third party check”.
- By paragraph 34.2.11; Part 1 of Contractor’s Requirements, the parties agreed that “The Sub-Contractor shall be responsible for submission of all details of any temporary works… needed to facilitate construction. All temporary works must be 3rd party checked by a qualified person. Details shall be submitted to the Contractor at least seven days before proposed erection. No temporary works shall be commenced without written approval of the Contractor”.
- The concrete core is part of the permanent works, and the slipform rig used to construct it is part of the temporary works. Dunne had, due to the terms of its sub- contract with Multiplex, full design responsibility both for the concrete core, and for the temporary works, and this is agreed by the parties. The Second Defendant, BRM Construction LLC (“BRM”) was a specialist design and engineering consultancy, who was appointed by Dunne in respect of the design of the slipform rig, under a Consultancy Agreement executed between Dunne and BRM on or about 18 November 2015. BRM was based in Dubai and does not appear to have been insured. Another entity, RNP Associates Ltd (“RNP”), was engaged by Dunne to provide independent third party design services. RNP was a professional design checking consultancy based in London. It entered liquidation on 1 October 2018. RNP was insured.
- The Third Defendant, Argo Global Syndicate 1200 (“Argo”), are RNP’s insurers. By reason of the Third Parties (Rights against Insurers) Act 2010 (“TPRAI Act”), Multiplex claims that the rights RNP had to be indemnified by Argo were transferred to Multiplex. RNP’s liability to Multiplex has not yet been determined, but is said to arise as a result of the independent design check performed by RNP on the design for the temporary works. Such an independent third party check is required under the relevant British Standard, namely BS 5975 (3rd^ edition, effective from 31 December 20 08). It was also, as has been seen, required by Dunne under the terms of Dunne’s sub-contract with Multiplex, namely in paragraph 34.2.11; Part 1 of the Contractor’s Requirements (which is set out at 5 above). RNP was the independent third party design checker for the design of the slipform rig, and provided what is called a Category 3 design check on that design. RNP was engaged by Dunne to perform this design check for a modest fee of £3,9 78 , in circumstances which I explain further below.
- The heart of the case as a whole arises as a result of what occurred after Dunne went into administration. Multiplex terminated Dunne’s sub-contract, as it was permitted to do, and engaged an alternative specialist sub-contractor, Byrne Brothers Ltd (“Byrne”) to replace Dunne, and to complete the sub-contract works. At that point in mid-2016, Dunne had performed the concrete core slipform works to Building 1 up to level 7 , out of the 37 levels required. It is said by Multiplex that those works had progressed only very slowly, but nothing turns on that in terms of resolution of the preliminary issues and any claim against Argo. When Byrne was first engaged, the first thing that it did was to investigate both the works to date, and the slipform rig as constructed on site. Byrne concluded that both were defective. Indeed, not only was Byrne not prepared to take responsibility for the performance of the slipform rig, but Byrne concluded that in some respects it was unsafe and should not be used. Multiplex therefore had the rig replaced, as part of wider works considered necessary at that time in order to proceed with Byrne, and to continue the project. The works thereafter proceeded with Byrne completing those the subject of the sub-contract between Multiplex and Dunne.
- The costs of Multiplex replacing the slipform rig, and taking other remedial steps, form part of the substantial losses overall that Multiplex claims it has suffered as a consequence of the various breaches by each of Dunne, BRM and RNP in respect of the works at 100BG. The total claim is pleaded in the sum of over £1 2 million, including remedial works, delay, disruption and consequential losses. Default judgments have already been obtained by Multiplex against both Dunne and BRM. The limit on the policy provided by Argo is £5 million, and given RNP’s liquidation, any recovery against that defendant is said by Multiplex to be limited to that figure.
- Multiplex claims that it is entitled to proceed directly against Argo to recover under the policy because RNP owed it, Multiplex, duties of care and/or had provided warranties direct to Multiplex. It also relies upon the terms of the TPRAI Act, but nothing arises in that respect under the preliminary issues, which are concerned with the existence of a duty of care and/or any warranties provided by RNP. Unless RNP did owe such duties, or provide warranties, directly to Multiplex, then Multiplex’s claim directly against Argo cannot succeed, hence the preliminary issues. B: The Issues
- On 10 September 2020 Pepperall J approved the trial of preliminary issues agreed by the parties. These issues concern Argo’s potential liability to Multiplex. They were
that there was a contract between RNP and Dunne in paragraph 19 of its original Defence. That paragraph had stated that the contract arose in the following way: “Roger Tice [of RNP] responded [to an enquiry by Dunne] by email of 2 December 2015 at 10.53 enclosing a fee proposal. The “Quotation for Design services” was addressed to “Dunne Group” and was for a sum of £ 3 , 978. The quotation was accepted and formed the basis for the contract between Dunne and RNP for the provision of these services.” The Amended Defence had added to this and pleaded that: “It [ie the quotation] was stated to be based on the “RNP Terms” terms of business (and further stated: “This quotation is subject to RNP’s Standard Terms of Business unless otherwise agreed and noted within”) The RNP Terms (issue 02 Issue Date 08/2015) provided inter alia: “ 13.3 Nothing in this Agreement confers, or purports to confer on any third party any benefit or any right to enforce any term of this Agreement. In particular any advice provided by the Consultant is for the sole benefit of the Client and may not be used or relied upon by third parties ’ ”
- By the re-amendment of the Defence, the acceptance by Dunne leading to a contract was also expanded upon in that the pleading now stated: “The quotation was accepted by Dunne, in that it was content for RNP to carry out the Category 3 design check on the basis set out therein and it therefore formed the basis for the contract between Dunne and RNP for the provision of these services. RNP’s Standard terms of Business, including clause 13.3, where thereby incorporated by notice into the contract between Dunne and RNP.” The re-amendment also stated “Whilst Dunne sent a letter to RNP on 3 December 2015 referring to attached “Consultancy Agreement” [for RNP] to sign and return, there is no indication that the attachment was signed and returned on behalf of RNP”.
- Mr Markham, RNP’s sole witness to be called for the preliminary issues, had given written evidence in his witness statement that he was involved on the technical side and that it was his co-founder of RNP, Mr Tice, who had dealt with the contract being agreed with Dunne. Mr Markham said he did not know if the terms of business had been sent to Dunne. He also said that “I was under the impression that the check was being carried out under RNP’s Standard Terms of Business. It was only subsequently that I became aware of this correspondence alluding to a possible Consultancy Agreement. As Managing Director, Roger Tice would have dealt with this task and I have seen no record of whether or not the Consultancy Agreement was signed and returned to Dunne. I do not recall ever seeing the Consultancy Agreement and I do not know if it was ever signed or returned to Dunne”. He gave no evidence of RNP’s usual practice in terms of contract formation either.
- Both parties wished me to deal, in this preliminary issue trial, with what the terms of the contract were between RNP and Dunne, and whether that contract incorporated those terms which I have called the RNP Terms. Ms Colter for Argo did not seek either to call any additional witnesses, or deal with the point any further with Mr Markham (which was understandable, since he had said he was not involved) and although Mr Nissen accepted there was a contract between RNP and Dunne, he
submitted there was insufficient evidence to find that it incorporated the RNP Terms. This was for two main reasons. Firstly, he submitted that there was no evidence the terms had ever been sent to Dunne. Secondly, due to the chronology, after the email pleaded by Argo of 2 December 201 5 , Dunne had on 3 December 2015 sent a letter (signed by Mr Ranjit Singh) back to RNP which stated that it was sending two copies of a “ recently prepared Consultancy Agreement ” to be signed and returned by RNP. Neither Argo nor Dunne’s administrators were able to locate a copy of such a Consultancy Agreement, and nobody could say what its terms were. However, unless (which Mr Nissen submitted was extremely unlikely) that Consultancy Agreement had included or accepted the RNP Terms, it demonstrated lack of acceptance (if not rejection) by Dunne of the RNP Terms, and a counter-offer. He submitted that Argo’s plea of acceptance by conduct could not succeed in the light of such a counter-offer.
- It is somewhat novel for a court to find itself invited to make findings of contract terms in such an evidential vacuum:
- Argo have one witness from RNP who said he was not involved in contract formation. He did not know if the RNP terms were sent to Dunne; he did not know that a Consultancy Agreement had been sent by Dunne to RNP until these proceedings; he did not know if the Consultancy Agreement was signed by RNP and returned to Dunne or not; all he could say was that he was “under the impression that the check was being carried out under RNP’s Standard Terms of Business.”
- Argo also rely on the reference to the RNP Terms within the quotation sent to Dunne by email on 2 December 2015 to show they were incorporated into the contract between RNP and Dunne.
- Multiplex rely upon the subsequent letter from Dunne that stated it was enclosing two copies of a Consultancy Agreement sent to RNP on 3 December 2015. This letter is stamped “received” by RNP on 4 December 2016. No one has been able to find any copy of the Consultancy Agreement document that is referred to in that letter, either signed or unsigned, and either retained at RNP and/or at Dunne. It is not therefore possible to consider the terms of that proposed Consultancy Agreement.
- There is no evidence that RNP and Dunne contracted on the basis of the “Consultancy Agreement” document, and there is no evidence of what its terms even were. All that the letter of 3 December 2015 does is to show the date when it was sent, the date it was received by RNP, and that Dunne wanted the Consultancy Agreement signed and returned. On the balance of probabilities, that shows that the Consultancy Agreement did not within it include the RNP Terms (which would in any event be inherently unlikely). I accept that on the documents, the sending of the Consultancy Agreement constitutes a counter-offer by Dunne.
- Ms Colter, very fairly, accepted that if the letter of 3 December 2015 constituted (or is to be treated as) a rejection of the RNP Quotation of 2 December 2015 then the only way in which the RNP Terms could have been incorporated would be if Dunne were later to have abandoned that position, and accepted RNP’s quotation of 2 December 2015 by conduct. I accept that is the sequence which would have led to acceptance by Dunne of RNP’s quotation; it is a logical analysis. However, there is nothing to show that such an abandonment occurred. This is a battle of the forms type scenario. There is nothing to show what happened after the letter of 3 December 2015 sent by Dunne
In this case, the letter of 3 December 2015 from Dunne enclosing the Consultancy Agreement demonstrates on the balance of probabilities that Dunne did not specifically accept RNP’s quotation. That letter also serves as a counter-offer to contract on the terms of the Consultancy Agreement. It is unlikely that the Dunne Consultancy Agreement simply replicated the RNP Terms. This removes the possibility of acceptance by Dunne of the quotation of 2 December 2015 by conduct. There is no evidence that, after 4 December 2015, RNP made a further offer to Dunne contract on the RNP Terms.
There is no Consultancy Agreement available and there is no evidence that RNP accepted its terms. There is no evidence that it was ever signed and returned. No conclusions, one way or the other, can be drawn regarding what happened after the letter of 3 December 2015 from Dunne was received at RNP, nor from the fact that no copy of the Consultancy Agreement has been produced by any party in this litigation. This is because there is no evidence available from any source that would lead to any conclusions.
There is no evidence that Dunne later abandoned its position, set out in the letter of 3 December 2015, of seeking to have RNP contract with it by accepting the terms contained in the Consultancy Agreement.
There was a contract between Dunne and RNP. This is accepted by Multiplex. This contract was, in the absence of either party’s terms being accepted by the other, in simple terms that do not incorporate either the terms of the RNP quotation (which was not accepted by Dunne) or the Consultancy Agreement (there being no evidence that this was accepted by RNP). The simple terms upon which the parties were agreed were that RNP would, at Dunne’s request, perform the Category 3 check upon the design brief for the slipform rig for the agreed fee of £3978, and would provide Dunne with the relevant certificate. It was an implied term of that contract that RNP would use reasonable care and skill in performing that design check.
The result of these findings on contract formation is that the RNP Terms were not incorporated into the contract between RNP and Dunne. I will therefore address the legal arguments on the preliminary issues on that basis. I will, however, return briefly to this point at the end, and provide an alternative answer (if it is alternative) to deal with an alternative scenario, namely if Argo were entitled to rely on RNP’s standard terms in its dealings with Dunne. This will provide my answer to the preliminary issues in the event that I am wrong at 25 above.
In light of that, I therefore turn to consider the two preliminary issues, as set out above at [ 11 ]. The first issue concerns the scope of any duty of care owed by RNP to Multiplex for the performance of its duties in performing the Category 3 design check and the issue of the certificates. The second also concerns the certificates, but is in respect of warranties said to have been provided by RNP contained in the certificates and whether any warranties were provided by RNP directly to Multiplex.
Multiplex submits that the issues can be answered with a simple yes/no to each; indeed, that is all Multiplex seeks. The issues could potentially be answered in that way, and if the answer to either issue were to be “no”, then perhaps nothing further is required. However, if the answer to either issue (but particularly the first one) were to be in the affirmative, it seems sensible to go somewhat further than a mere “yes”.
Simply being told, for example, that there was a duty of care owed, but not to explain further in terms of the scope of any duty were one to be owed, would not be of assistance to the parties. Nor, in my judgment, would a simple answer stating “yes” fit with the authorities, which state that the existence of a duty of care cannot be dealt with in the abstract.
- Questions of breach are not, in my judgment, part of either of the preliminary issues. This has been made clear to the parties at earlier interlocutory hearings, including the one before Pepperall J on 10 September 2020 when he said: “if one or other party starts filing evidence at this stage where the expert is opining one way or the other as to whether there is a breach, for example, then the other side should not be responding to that, but should simply regard that as something that the judge at the preliminary issue trial will put a line through.”
- I fully endorse those views. The preliminary issues were discussed and agreed by the parties, and approved by the court, on the basis that they would deal with the existence and potential scope of any duty of care and/or warranties as a matter of law, and not that they would delve into the potentially complex and factual domain of any breach of duty arising on the facts. This is clear from the wording of the preliminary issues themselves, and was made clear by Pepperall J at the hearing that approved them as a matter of case management. Notwithstanding that, some evidence on potential breach was adduced by the parties (for example by Mr Taylor the expert for Multiplex in his report). I do not address such matters in this judgment.
- Reliance is however something that must be considered, in terms of reasonable reliance (in the sense of the use to which such certificates would be put). Actual reliance in fact in this case is not part of the preliminary issues. Multiplex also sought to cut off, as it were, any consideration of what happened after Dunne received the certificates. The reason for that is explained at [ 35 ] below and following, but basically this is because Multiplex were not, in any event, provided with the important first certificate in the form it was produced by RNP. Dunne changed the certificate, deleting certain parts, without RNP or Multiplex knowing this. C: Independent Category 3 Checks
- Complex or innovative designs – which the temporary works being performed by Dunne for 100BG were – are referred to as Category 3 designs, as they appear in that relevant table within the British Standard itself, considered in more detail at [ 63 ] below. Such designs require an independent third party both to check and to approve them, in addition to the designer themselves. The third party must be from a different organisation than the designer. Lower category checks, such as Category 2, can be done by someone who is not the designer but is within the same organisation. The purpose of checks such as these are to ensure the integrity of the design of such works, and also to demonstrate that such design has been performed correctly. The requirement for a Category 3 check means the check must be done by an independent party. Argo accepts that part of the purpose of such a check is to ensure safety.
- Multiplex was the main contractor on this construction project, and Dunne was its specialist design and build sub-contractor. Multiplex is not an entity removed from the contractual framework, or a later arrival to a project, such as a later occupier or subsequent purchaser of 100BG. Dunne was performing the works the subject of the design for Multiplex under its own specific and very detailed sub-contract, and was constructing them under that sub-contract too. This included designing and
been provided to Multiplex at all, because Dunne had removed the “Notes/Observations”, and sent on to Multiplex only an adulterated certificate.
- This point may explain why Multiplex, in carefully worded submissions, invited the court to answer the Preliminary Issues by reference to the certificate(s) sent to Dunne, rather than the certificate(s) which Multiplex in fact received. Although in one sense that approach by Multiplex could be argued as consistent with the issues as ordered, the alteration of the certificate was not known about at the time Pepperall J made the order in September 2020. For its part, Ms Colter for Argo invited the court to take account of the alteration of the certificate. She submitted that it would be a rare case in negligent misstatement if the receiver of the statement never actually received the statement itself, but merely a doctored version of it. This was met by Multiplex arguing that they relied only on the statement made in the certificate, set out at [ 34 ], and not the whole of the terms of the certificate.
- I do not consider that it would be correct in law to split the certificate into separate elements, consider only one passage within it, and ignore the existence of the notes and comments that are part of the certificate and go with it. The statement made by RNP were the words in, or comprising, the certificate as a whole. Further, the statement that Multiplex relies on in these proceedings includes the words “the preparation of this design/check” and “this design/check” and that must be construed as including the notes and observations. The whole document is headed “Design Check Certificate”. The notes and comments are part of the design check performed by RNP. It would be wholly artificial, in my judgment, to focus on one statement or sentence within the certificate, extract it and consider it separately from the other text. Other boxes within the certificate explain and qualify the certificate as a whole. The boxes headed “Description of Check/Calculations” and “Design Criteria & References” put the statement of certification in its proper context. The box “Notes and Observations” does the same. However, my decision that the statement is the whole certificate, and not the small part upon which Multiplex invite me to concentrate, may not affect the answer to the preliminary issues.
- This point is also likely to be relevant at some later stage in these proceedings (if they continue beyond resolution of the preliminary issues) when actual or factual reliance by Multiplex is considered. Given that the approval necessary from the Temporary Works Co-ordinator, which permitted the temporary works to commence because it led to the issue of the permit to load, was given after the certificate of 25 January 2016 was sent to Multiplex, the only certificate upon which Multiplex can be said to have relied is the altered one provided to it by Dunne, and not the one in the form it was issued by RNP. Although there was a second certificate issued by RNP, namely that dated 4 February 201 6 , that was not provided to Multiplex until 22 June 2016. This was a point added to the Defence by way of amendment following the Amendment to the Particulars of Claim permitted by Kerr J on 9 December 2020. Paragraph 26(d) of the Amended Defence (the part added by amendment) states: “26(d) Further and in any event, it is denied that Multiplex can have placed any reliance upon the revised Design Check Certificate dated 4 February 2016 in planning, preparing or programming the temporary works, whether as alleged or at all. It did not receive this certificate from Dunne until at least 22 June 2016, by which point ten permits to load had already been issued and the slipform had been in operation for nearly five months.”
- I will return to reliance later. The third factual complication is that the slipform rig on site that Byrne concluded was not safe, and therefore had to be substantially modified or replaced, was not the slipform rig whose design had been subject of the Category 3 check by RNP. There were some differences, and in the claim against Dunne, Multiplex has pleaded in paragraph 31(1) that in August 2016 it, Multiplex: “(1) Discovered, following a survey by a company called SES, that the original slipform design had been modified on site by Dunne, including the introduction of 49 additional jacks”. Multiplex allege defects and inadequacies both in the original design (set out at paragraph 33 of the Amended Particulars of Claim) and in the modified design (set out at paragraph 34 of the Amended Particulars of Claim). Part of its case against Dunne is therefore that the actual slipform was not constructed as designed.
- I recite these factual complications for completeness. Reasonable foreseeability and actual reliance are not the same thing. Multiplex appeared at one stage to invite some provisional findings on actual reliance, notwithstanding the dates provided in the preliminary issues themselves, to which Mr Nissen submitted I should pay very close and specific regard when deciding the preliminary issues. Actual reliance is not included as part of the preliminary issues, and was certainly not intended to be included by the court when the order was made. Further, such findings are not necessary to decide the issues.
- Notwithstanding my finding that the statement made by RNP was the entirety of the certificate and not simply the single sentence of certification, I shall deal with the case in negligent misstatement as a matter of principle generally. I shall then return to the disagreement between the parties set out at [ 39 ] after I have reached conclusions upon the two preliminary issues, and consider the effect of that, if any, upon those answers.
- Multiplex was the employer of the Temporary Works Co-ordinator for the whole of the site, who issued permits allowing the loading of the slipform for the concrete core works to be performed. Although the word “issue” is used, in fact this comprised signing forms already prepared by Dunne, although I do not consider that slight difference to be relevant. Slipform is a method whereby the concrete works are constructed incrementally, allowing the concrete at a particular level to be poured (and therefore to start to cure or set) with the works moving gradually up the height of the building. Slipform is continuously moving formwork. These types of works are, as with so many construction operations, potentially dangerous. Temporary works of any type also have a particular level of dangerousness in my judgment, in particular if they are works of this nature. The temporary works procedure was at Appendix 7 to the construction phase plan produced by Multiplex as part of the fulfilment of its duties under the Construction (Design and Management) Regulations 2015. Paragraph 1 of the temporary works procedure stated in terms: “temporary works can represent huge risks to the safety of people working on site if not designed, constructed and managed correctly”. The same passage continues on: “While clearly avoiding this safety risk is the primary consideration, if temporary works go wrong, they can cause major material damage and can result [in] major set- backs”.
Works Coordinator, as set out in the Reply. RNP knew or ought to have known that its design check certificate(s) would be seen and relied upon by Multiplex. Therefore, RNP were also, in the said premises, in breach of such duty of care and/or of the warranties set out in the Design Check Certificates, in that they had not used reasonable skill and care in the preparation of the design check to ensure that the calculations contained within the Dunne/BRM design accorded with the design brief, current industry practice and design codes”.
- The case in negligent misstatement is set out in paragraph 44 , in particular paragraph 44(2) which states: “44. Further or alternatively, the statements contained in the said certificates were: …..(2) made negligently in that RNP knew, or ought to have known, that the said statements were false.” (emphasis added)
- Mr Nissen submitted that paragraphs 43 and 44 were both concerned with, and only with, negligent misstatement. I cannot accept that submission. Paragraph 43 is concerned with failure to use reasonable skill and care in the preparation of the design check, not the making of the statement (negligently or otherwise) or the issuing of the certificates. Paragraph 4 4 expressly states in its introductory wording “further or alternatively”. It cannot be read as re-stating the same subject matter as paragraph 43; it is additional to that. In my judgment paragraph 4 3 of the Amended Particulars of Claim goes wider than simply negligent misstatement, and alleges a duty of care generally in performance of the design check. This is important in terms of how Multiplex put its case in terms of the law of tort filling a gap in liability under the contractual structure or chain. Multiplex maintain that there is such a gap, and that it, Multiplex, would have no right of recovery against Dunne for a failure to take reasonable skill and care in making the statement in the certificate.
- However, although that was the argument advanced at the trial of the preliminary issues, it is not the way that the case is put by Multiplex in its Amended Particulars of Claim. In paragraph 39, under the heading “Breach of Obligations”, the defective design of the slipform rig is alleged to constitute “a breach of the obligations undertaken by [Dunne] and [BRM], and RNP, in that the design had not been carried out with reasonable skill, care and diligence.” Particulars of that are then provided in the following paragraph: “40. Thus, Dunne (1) Failed to carry out and complete the Sub-Contract Works in a proper and workmanlike manner (breach of Clause 2.1.1); (2) Failed to exercise all the reasonable skill, care and diligence to be expected of a properly qualified and competent designer experienced in designing works of a similar size, scope, nature and complexity (breach of Clause 2.13.1); (3) Were, in the premises, in breach of the warranties and undertakings which they gave at Clauses 2.1.6.1 and 2.13.1 of the Sub-Contract;
(4) Were in breach of Clause 2.13.2, and paragraph 21.16.8, Part 1 of the Contractor’s Requirements, in that the Category 3 check failed to comply with the Statutory Requirements, in the respects set out at paragraph 43(2) below. Particulars of sub-paragraphs (1) to (3) The design, whether as originally conceived, or as modified, was defective and fell below the standards to be expected of a properly qualified and competent designer experienced in designing work of a similar size, scope, nature and complexity to the Sub-Contract Works, in the respects set out at paragraphs 33 to 35 above. (5) Were in breach of Clause 2.13.2 and paragraph 21.16.8, Part 1 of the Contractor’s Requirements in that the Category 3 check failed to comply with the Statutory Requirements, in the respects set out at paragraph 44(2) below.” (emphasis added)
- I have already explained how paragraph 44(2) is the part of the pleading that alleges negligent misstatement. Therefore, Multiplex’s clear pleaded case against Dunne is that Dunne failed to comply with the Statutory Requirements in the same terms as that case is advanced against RNP in paragraph 44(2), namely that the statements made in the certificates were made negligently.
- Whatever the different ways that Multiplex advances its claim against Dunne, and whether it is a claim for breach of contract, breach of CDM obligation, and/or breach of Statutory Requirement, it is clear that they encompass the same complaints in respect of the alleged defects in the certificates (and the statements in the certificates) as are advanced against RNP. In my judgment, the important point can be summarised as follows from the contractual provisions. Dunne had direct contractual obligations to Multiplex to perform the design (including the design of any temporary works) using reasonable care and skill, and to comply with Statutory Requirements, which included obtaining a Category 3 check in respect of the temporary works design. Multiplex brings a claim against Dunne, both for breach of that direct duty, and also for failures in identifying what are said to be breaches by RNP in the latter’s exercise of reasonable skill and care.
- Accordingly, Multiplex alleges failures against both RNP and Dunne for alleged failures by RNP in performing the Category 3 check. I have omitted detailed reference to the case Multiplex brings against BRM, based upon failures of BRM’s design responsibility, because that is not relevant to the claim Multiplex brings against RNP.
- It can therefore be seen that, were Dunne and BRM still solvent and/or insured, the main thrust of Multiplex’s case would be against them. Certainly, as a matter of law, Multiplex has a cause of action against Dunne for the same matters advanced against RNP (or its pleading proceeds as though it does). The case against RNP would be an add-on to that main case. As it is, RNP (or more accurately, Argo, RNP’s insurer) may be the only party from whom Multiplex might realistically expect any recovery. This point is relied upon by Argo; paragraph 2 of the Amended Defence makes extensive reference to this, and states that “Multiplex has constructed an artificial claim against Argo in respect of the work carried out by RNP”. It also criticises the claim as seeking “to impose full design responsibility upon RNP in respect of the design of the slipform rig”.
D: The British Standard
- The relevant British Standard is British Standard 59 75: Code of practice for temporary works procedures and the permissible stress design of falsework (“BS5 975 ”). Table 1 requires a Category 3 check for complex or innovative designs, and it is agreed in this case that the design of the slipform rig falls within Table 1 such that it required a Category 3 check. Under “independence of checker” – which is different for different levels of check – the Table states “the check should be carried out by another organisation”. Category 3 is the highest level of check, and the only one in which the check is to be performed by another organisation, independent of the designer.
- Under paragraph 1of BS 5975, the following is set out: “1. Scope. This British Standard gives recommendations and guidance on the procedural controls to be applied to all aspects of temporary works in the construction industry. It also includes guidance on design, specification, construction, use and dismantling of falsework. This standard gives guidance on permissible stress design of falsework.” Section 2 gives recommendations for the procedures required to ensure that temporary works are conceived, designed, specified, constructed, used and dismantled all in a safe and controlled manner.
- Under 3.10.2 of BS5975, part of Section 3 “Terms and Definitions” the following is stated: “design check evaluation of the design to determine whether it conforms with the design brief and can be expected to provide a safe engineered solution.”
- Other definitions were as follows: In paragraph 3. 28 “Permit to load” is defined as a “certificate issued to indicate that the temporary works may safely be put to its design use”; In paragraph 3.41 the “temporary works co-ordinator” (which I have described as the TWC) is defined as the “competent person with responsibility for the co-ordination of all activities related to the temporary works”; In paragraph 3.42 the “temporary works supervisor” (which I term as the TWS) is defined as the “competent person who is responsible to and assists the temporary works co-ordinator”.
- In paragraph 9.2 of BS5975, which goes with Table 1 , the following is stated: “9.2.1 Prior to the commencement of the construction work, the proposed temporary works design should be checked for concept, adequacy, correctness and compliance with the requirements of the design brief. This check should be carried out by a competent person or persons independent from those responsible for the design. The ability of the checker and his remoteness or independence from the temporary works
designer should be greater where new ideas are incorporated or the temporary works are complex. 9.2.2 Design checks should be undertaken in accordance with one of the categories given in Table 1. 9.2.3 For categories 2 and 3, the checker should carry out the check without reference to the designer’s calculations using only the design brief, design statement, drawings and specification and associated information not produced by the designer.”
- It is common ground that RNP should not be given the designer’s calculations. The British Standard makes it clear that the independent checker is not to be provided with these.
- The British Standard also stated the following: “9.2.5 On completion of the design and design check, a certificate should be issued for all categories, confirming that the design complies with the requirements of the design brief, the standards/technical literature used and the constraints or loading conditions imposed. The certificate should identify the drawings/sketches, specification and any methodology that are part of the design and it should be signed by the designer and design checker. The package of information issued to the TWC should include this certificate.” (emphasis added)
- I have explained above that Multiplex, and the TWC, was not provided with “this certificate” (at least so far as the first certificate of 25 January 2016 is concerned) at all; it was provided with what appears to be an unauthorised alteration of the certificate, with the notes and comments removed. It was not provided with “this certificate” (meaning the second one of 4 February 2016) until the temporary works had been underway for some months.
- There is no doubt that RNP was engaged by Dunne to perform an independent third party design check of the design of the slipform rig. The real question is whether, either by reason of performing that duty, or because performing that duty includes it as a component part, RNP owed Multiplex the wider duty alleged by Multiplex, which for Multiplex to succeed, must include a duty to hold Multiplex harmless from economic loss.
- The way that duty is said to arise is as follows. Multiplex made clear in its Reply that its claim that RNP owed it a duty of care in carrying out the Category 3 check arises because there was a voluntary assumption of responsibility by RNP to Multiplex. This is further made clear in its written Opening Submissions by Mr Nissen. Given the nature of the claim for loss and damage, the duty which is alleged to have been owed must be one to prevent Multiplex from suffering economic loss as a result of the underperformance or failure of the slipform rig.
- Multiplex also brings the alternative claim against RNP for negligent misstatement which I have already explained, set out in paragraph 44 of its Amended Particulars of Claim. This is on the grounds that the Category 3 check certificates issued by RNP to Dunne contained certain statements which were intended to be relied upon by
