Bovis Lend Lease Ltd v RD Fire Protection Ltd, Court of Appeal - Technology and Construction Court, February 06, 2003, [2003] EWHC 939 (TCC),89 Con LR 169

Extract

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Bovis Lend Lease Ltd v RD Fire Protection Ltd, Court of Appeal - Technology and Construction Court, February 06, 2003, [2003] EWHC 939 (TCC),89 Con LR 169

In the Court of Justice

Queen's Bench Division

Technology and Construction Court

Before: His Honour Judge Thornton Q.C.

Between:

Bovis Lend Lease Limited (formerly Bovis Construction Limited)

Claimant

and

R D Fire Protection Limited First Defendant

and

(1) Huthco Limited First Claimant

(2) Baris UK Limited Second Claimant

and

Bovis Lend Lease Limited (formerly Bovis Construction Limited)

Defendant

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Action

Case Numbers: HT-01-152 & HT-00-390

Date of Hearing: October 2002

Date of Handing Down of Judgment in Open Court: 2003 6th Feb 03

Representation

Mr Richard Fernyhough QC and Mr Paul Sutherland appeared for the claimant, Bovis, instructed by Masons, 100 Barbirolli Square, Manchester, M3SS DX: 14490 Manchester 2 Ref: MDH/MJH/CB /MAN.222508. 1.

Mr John Slater QC and Mr Sean Brannigan appeared for the first defendant, R D Fire, instructed by Berwin Leighton Paisner, Bouverie House, 154 Fleet Street, London, EC4A 2JD, DX: 103 London, Ref: DLJ/JLG/01132686.

Mr Mark Raeside QC appeared for the second defendant, Baris, instructed by Laura Harry, Company Solicitor, Baris UK Limited, Baris House, Nunn Brook Road, County Estate, Huthwaite, Notts, NG17 2HU.

This judgment was made in writing and was handed down by the court. For the purposes of paragraph 5.12 of 52PD-19 (Practice Direction - Appeals), this written judgment is to be taken as replacing an official recording and approved transcript of the judgment.

JUDGMENT

1. Introduction

1. The underlying disputes that give rise to the preliminary issues with which this judgment is concerned arise out of the construction of a very large shopping and leisure centre in Braehead, Glasgow by Bovis Lend Lease Limited, then called Bovis Construction Limited (``Bovis'') for Braehead Glasgow Limited (``Braehead''). The contract was entered into on 18 December 1997 in a heavily amended JCT Standard Form of Building Contract, with Contractor's Design, 1981 Edition and the Contract Sum was £184,240,776.00. The performance of this contract gave rise to wide ranging disputes between Braehead and Bovis of considerable factual complexity. Bovis claimed additional loss and expense and damages in the total sum of approximately £37.7m and Braehead counterclaimed recovery of alleged overpayments, liquidated damages and damages for defective work and mismanagement in the total sum of at least £65.8m. Thus, the sum total of the differences between the parties was at least £103.5m. This vast litigation between these parties was ultimately compromised by a settlement agreement dated 11 January 2002 and this agreement provides the basis of the preliminary issues.

2. Bovis acted as management contractor for the project and the works were sub-divided into works packages entered into by Bovis with a large number of different sub-contractors. Two of these intended works packages were for fire protection and dry lining works and a company, now called Baris UK Limited, (``Baris'') was appointed by Bovis to undertake this particular works package. Baris contends that no contract was ever entered into but Bovis contend that a sub-contract incorporating the tender documents and tendered standard conditions was agreed and governed the relationship.

3. There is no agreement between Bovis and Baris on the pleadings as to which of two companies carried out work for and, if there was a contract, contracted with Bovis. The company who tendered for the works package, Huthco Limited, sold all its assets to, and became a wholly owned subsidiary of, Baris who contends that it was the relevant company who contracted with Bovis, if there was a contract at all, and who carried out work for Bovis on a restitutionany basis after 12 August 1998 if there was not. Formally, however, Baris' claims are brought by both companies jointly and severally against Bovis. In response, Bovis does not admit that Baris is the appropriate party to make claims against it but it claims an abatement, set-off and counterclaim solely against Baris. It would, therefore, appear to be accepted by both parties that Baris is the appropriate party if a contract was entered into. Baris would also appear to be the appropriate party for any restitutionary claim for work carried out after 12 August 1998. Both companies are, however, parties to, and will be bound by the answers to, the present issues. In this judgment, I will refer to Baris as the relevant party although, strictly speaking, that is a reference to Baris and Huthco Limited both collectively and individually.

4. Bovis appointed Baris on a date which has yet to be established to carry out the fire protection and dry lining works described in the two works packages, numbered 2500 and 4200. The work was defined in the main contract. The potential dates for carrying out this work were agreed to be, for the pur...

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