Associated Newspapers Ltd v Buckingham Group Contracting Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Roger ter Haar |
| Judgment Date | 02 November 2022 |
| Neutral Citation | [2022] EWHC 2767 (TCC) |
| Docket Number | Case No: HT-2021-000457 |
| Court | Queen's Bench Division (Technology and Construction Court) |
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[2022] EWHC 2767 (TCC)
Mr Roger ter Haar KC
Sitting as a Deputy High Court Judge
Case No: HT-2021-000457
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Royal Courts of Justice
Rolls Building
London, EC4A 1NL
Lynne McCafferty KC and Daniel Churcher (instructed by Baker & McKenzie LLP) for the Claimant
Ben Patten KC (instructed by Weightmans LLP) for the Defendant and Part 20 Claimant
Neil Hext KC (instructed by Womble Bond Dickinson LLP) for the Third Party (in relation to “insurance matters”)
Simon Henderson (instructed by Keoghs LLP) for the Third to Sixth Parties (in relation to “Collier Defence matters”)
Robert Stokell (instructed by DAC Beachcroft LLP) for the Fourth to Sixth Parties (in relation to “insurance matters”)
Hearing date: 7 October 2022
APPROVED JUDGMENT
This judgment was handed down by the court remotely by circulation to the parties' representatives by email and released to The National Archives. The date and time for hand-down is deemed to be 2 November 2022 at 10.30am
Mr Roger ter Haar KC:
This matter came before me on 7 October 2022 for a Costs and Case Management Conference. In the event the Court was able to deal with most matters arising during the half day set aside for the CCMC. I was able to hear submissions in respect of cost budgeting during the time allocated for the CCMC, but there was not sufficient time to give judgment on that matter. This is my judgment on cost budgeting.
Background
The Parties
I take the background set out below from the Claimant's Skeleton Argument: of course the evidence in due course may require this background recital to be corrected or modified.
The Claimant (“ANL”) is a newspaper publisher. It is the present owner of a site known as Plot 1, Thurrock Commercial Park, Oliver Road, Thurrock, Essex (“the Site”). It is part of the Daily Mail and General Trust plc (“DMGT”) group.
The Defendant / Part 20 Claimant (“BGCL”) is a civil engineering and building contractor. As set out below, BGCL undertook the design and construction of a new warehouse and production unit together with offices and outdoor areas at the Site (“the Works”) to house a new printing facility for ANL.
The Third to Sixth Parties (“the Collier Insurers”) are the professional indemnity insurers 1 of TR Collier Associates Limited (“Collier”) a company in liquidation.
Collier was engaged by BGCL to carry out the engineering design for the Works, including the design of the external areas.The contracts, ownership of the Site, and the Works
On 15 December 2011 Harmsworth Quays Printing Limited (“HQPL”) purchased the Site with the intention of developing a new printing facility and associated buildings and external areas (“the Development”). HQPL was part of the DMGT group. HQPL had entered into a contract on 28 June 2011 with Goodman Logistics Developments (UK) Limited (“Goodman”) pursuant to which Goodman was to appoint a building contractor to carry out the Development.
On 24 May 2012 Goodman appointed Collier to carry out engineering services in respect of the Development pursuant to the “Collier Appointment”. The Collier Appointment was subsequently novated to BGCL.
On 20 June 2012 Goodman entered into a design and build contract (“the D&B Contract”) with BGCL for the design and construction of the Development. The D&B Contract expressly conferred certain rights and the benefit of certain warranties on HQPL.
Practical Completion of the Works was certified on 18 June 2012.
On 2 October 2016 HQPL sold the Site to ANL as part of a broader reorganisation of the DMGT group.
By a deed of assignment executed on 30 April 2020 HQPL assigned all of its rights under inter alia the D&B Contract to ANL.
The Alleged Defects
In or around October 2015 HQPL discovered physical damage to the external cladding around the interface point of the incoming gas supply at the Site. The concrete slab in the vicinity of the incoming gas supply had sunk by around 100mm. BGCL attended the site and carried out certain remedial works to the gas supply for no charge.
On around 16 August 2017 an underground sprinkler pipe in a yard area failed causing localised flooding. The slab in the vicinity of the pipe had sunk by between 50mm and 100mm. BGCL attended site and carried out remedial works to the failed sprinkler pipe, again for no charge.
As a consequence of the two instances of damage that had occurred to date, HQPL started to monitor slab movement at the site, and in early 2018 that monitoring exercise showed that there was differential settlement at the site. It is common ground between ANL and BGCL that some differential settlement has occurred, and that some further differential settlement will occur in the future, but ANL and BGCL dispute the extent of the differential settlement that has occurred and the likely extent of any future differential settlement.
These Proceedings
ANL alleges that:
(1) In breach of the terms of the Building Contract and / or negligently, BGCL:
(a) failed to properly investigate the ground conditions at the site;
(b) failed to obtain and / or properly consider or follow recommendations and advice in relation to ground conditions;
(c) failed to include in its design piling measures or to take other steps (such as ground strengthening measures) that were necessary to prevent excessive settlement given the ground conditions of the Site.
(2) Alternatively, the defects at the Site (or certain of them) arise from workmanship failures by BGCL.
(3) As designed and constructed by BGCL, and in breach of express and implied terms of the Building Contract, the external parts of the Works are not fit for purpose.
(4) BGCL is liable to ANL in damages for inter alia the costs of certain temporary repair works and a permanent remedial scheme, which ANL is to set out in a Schedule of Loss to be served on the other parties within 28 days of the CCMC.
BGCL's position in outline is as follows:
(1) BGCL accepts that some differential settlement has occurred but says that it is not as severe as ANL suggests, and that any future differential settlement will be minimal.
(2) BGCL accepts that repairs are required to the Works but denies that the Works are unfit for their intended purpose.
(3) BGCL does not positively aver that its design for the external elements of the Works was competent, but disputes ANL's allegations as to what precisely the design for the external portion of the Works should have included in order to discharge BGCL's design obligations under the Building Contract.
(4) BGCL says that a limited remedial scheme would be sufficient to remedy any defects in the Works.
(5) BGCL contends that ANL's claim is statute barred.
In its Particulars of Additional Claim BGCL alleges that any liability it may have to ANL was incurred as a consequence of Collier's failure to exercise reasonable skill and care in its design of the external parts of the Works, in breach of the terms of the Appointment. BGCL seeks declarations to the effect that Collier and the Collier Insurers are liable to indemnify BGCL against any losses it may incur as a consequence of ANL's claim.
The Collier Insurers admit that some damage has occurred due to differential settlement but make no admissions as to the extent of any damage and positively deny that any further substantial damage will occur. The Collier Insurers deny any breach on Collier's part; deny “ causation”; and deny that they have any liability to BGCL.
The Collier Insurers also raise coverage defences as follows:
(1) The Collier Insurers say that there was a breach of the duty of fair presentation. The Third Party says that but for that breach it would have included in its contract with Collier an exclusion in respect of any claim arising out of the Collier Appointment. The Fourth to Sixth Parties say that they would not have entered into their insurance contracts at all but for that alleged breach, alternatively that they would have entered on different terms.
(2) The Collier Insurers say that at the inception of their respective insurance contracts, Collier was aware of circumstances giving rise to BGCL's claim, and that that claim is excluded.
(3) The Third Party says that Collier failed to notify the Third Party of its claim within the time required by its contract with Collier, and that Collier is not entitled to an indemnity under that contract as a result. The Third Party and the other Collier Insurers also say that Collier's notification may have been insufficient to encompass BGCL's claim.
Representation
Before me ANL was represented by Ms. Lynne McCafferty KC and Mr. Daniel Churcher, instructed by Baker & McKenzie LLP, and the Defendant was represented by Mr. Ben Patten KC instructed by Weightmans LLP.
The representation of the other parties in this matter is a little complicated.
As set out above, BGCL has joined the Collier Insurers to these proceedings as the Third to Sixth Parties. The Collier Insurers deny that they are liable to provide any indemnity for the reasons summarised above.
Separately and in any event the Collier Insurers deny that Collier had any underlying liability to BGCL. In particular, it is alleged that Collier was entitled to rely on an earlier site investigation report, the Crossfield Report, which had been provided to Collier; that...
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