Beattie Passive Norse Ltd v Canham Consulting Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Fraser |
| Judgment Date | 30 April 2021 |
| Neutral Citation | [2021] EWHC 1116 (TCC) |
| Date | 30 April 2021 |
| Docket Number | Case No: HT-2019-000218 |
| Court | Queen's Bench Division (Technology and Construction Court) |
[2021] EWHC 1116 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS
TECHNOLOGY AND CONSTRUCTION COURT (QB)
Rolls Building
Fetter Lane
London, EC4A 1NL
THE HONOURABLE Mr Justice Fraser
Case No: HT-2019-000218
Helena White (instructed by Birketts Solicitors) for the Claimants
Rupert Higgins (instructed by Reynolds Colman Bradley LLP) for the Defendant
Approved Judgment
Hearing dates: 3, 4, 8, 9, 10 and 19 March 2021
Draft distributed to parties 21 April 2021
This judgment is in the following parts:
A. Introduction
B. The Issues
C. The Two Claimants
D: The Witnesses of Fact
E. The Experts
F. Negligence
G. Causation and the Decision to Demolish
H. Conclusions
A. Introduction
These proceedings concern a claim in professional negligence brought by Beattie Passive Norse Ltd (“BPN”) and NPS Property Consultants Limited (“NPS”) as claimants against the defendant, Canham Consulting Ltd (“Canham”), a practice of consulting engineers.
At first sight, these can be simply seen as proceedings with an entirely conventional background, explained as being a claim both for breach of contract and in negligence against professional engineers, Canham, in respect of the design of foundations at a site in Burwash, Sussex (“the Site”). The Site was used to construct two separate PassivHaus blocks, and these are referred to as Blocks A and B. Each block contained a small number of houses, connected to one another, as what are sometimes called terraced houses. PassivHaus is a proprietal term for a particular type of housing, constructed both in timber and brickwork, originating in Germany. Canham designed the foundations for both blocks, using pad foundations and ground beams. The type and depths of these foundations, their dimensions (particularly of the pads themselves), and the way in which the different elements of the foundations are connected, are important features of the design. The Site was in an area of Wadhurst clay, with a relatively shallow layer of topsoil above that, prior to the commencement of the construction works generally. It was important that the foundations were sufficiently well designed (and also constructed) such that the two blocks, once built, would be sufficiently resistant to movement that would otherwise occur. This meant that foundations were required of sufficient robustness for this particular Site.
The design of the foundations by Canham was, in some respects, negligent; some of the particulars of negligence are effectively agreed by Canham's expert structural engineer. The design, in certain respects, fell below the required standard of a reasonably competent engineer exercising due care and skill. The Particulars of Claim state that “while the Claimants were seeking to complete the Works, they discovered significant deficiencies in the design and, therefore, construction of the foundations and lack of adequate connection between the foundations and the ground beams and structure….” and so they “decided, reasonably and in order to mitigate their loss, to demolish and rebuild both Blocks”. The total losses claimed in the pleading were approximately £3.7 million, including the full cost of rebuilding following demolition. Demolition undoubtedly took place, and the two blocks were rebuilt. The Statement of Truth to the Particulars of Claim was signed by the claimants' solicitor, rather than a director of either claimant company.
BPN and NPS are related in the following way. NPS and a company called Beattie Passive Build System Ltd (“BPBS”) formed a construction joint venture company, that company being BPN. NPS is therefore a shareholder of BPN. Someone called Mr Ron Beattie (who was not called as a witness by the claimants) was at the time a director both of BPBS and also BPN. BPBS has the licence for the Beattie Passive Build System, which is a PassivHaus approved system of construction.
In early 2014, BPN tendered to design and construct Block A and Block B at the Site. That tender was made to another company, called Hastoe Homes, which the witnesses of fact for the claimants referred to as “the client”. The Particulars of Claim plead that “Mr Ron Beattie on behalf of the First Claimant and/or on behalf of the Second Claimant and BPBS engaged the Defendant to carry out the civil and structural design”. That averment plainly elides together a range of potential contractual relationships, all into one rather general statement. It cannot be right, and I do not accept, that one person was acting on behalf of all three different companies at the same time, in engaging Canham as the designer. It is now accepted by Ms White for the claimants (quite correctly and sensibly) that Canham was engaged by BPN, the date of that being agreed as 20 April 2014.
Beattie Passive Construction Ltd (“Beattie Construction”), another company in which Mr Beattie was involved, was contracted by BPN to perform the construction works. BPN was engaged by Hastoe Homes on 15 May 2014. Beattie Construction was engaged by BPN on a JCT Design and Build 2011 Contract on 12 August 2014. Mr Ron Beattie was a director both of Beattie Construction and also BPN (as well as being a director of BPBS). This contractual arrangement is described by the claimants in their submissions as being “back to back”. This expression means that the contractual obligations of Beattie Construction to BPN matched the contractual obligations that BPN owed to Hastoe. BPN must therefore have been engaged by Hastoe on the same JCT terms.
The groundworks were commenced in September 2014 for Block A and Block B, the foundation works being performed by Foxdown Engineering Ltd (“Foxdown”), a groundworks sub-contractor. Foxdown had been engaged as a sub-contractor by Beattie Construction. To be fair to Foxdown in this judgment (which as with all judgments, will be publicly available), the most recent revisions of the drawings issued by Canham to BPN, the company that engaged Canham, do not seem to have been issued for construction by Beattie Construction to Foxdown. Foxdown were issued with an earlier, superseded, set of drawings. Although Beattie Construction and BPN appear to be controlled by the same people (or some of the same people), there is limited evidence available concerning the exact working of the relationship between them. There is therefore limited evidence about whether BPN (who received the Canham drawings from Canham) issued them onwards in a full and timely fashion to Beattie Construction. Whether they did or not, Beattie Construction did not pass them on to Foxdown. That is clear on the face of emails originating from Foxdown. Foxdown used the Revision A version of the drawings for construction, and these were issued to Foxdown “for construction”. Foxdown cannot, therefore, be criticised for using them for construction. This factor became known in about 2016, well after Foxdown had constructed the foundations, and is heavily relied upon by Canham in these proceedings.
Regardless of the reasons for this happening, the Revision B drawings were clearly not used by Foxdown when constructing the foundations. Hence the foundations were constructed by Foxdown at a time when Revision B drawings with certain foundation depths, and dimensions of pads, had in fact been produced by Canham (and had been issued by Canham to BPN), but were not made available to Foxdown. Foxdown only had issued to it by Beattie Construction the Revision A drawings with shallower depths, and smaller dimensions of pads. This version of the design is therefore the one that was used for each of Block A and Block B, which meant that the foundations as constructed did not match the foundations as designed in the Revision B drawings for the two blocks.
Two further factual complications are present in this case. Firstly, the works that were performed by Beattie Construction in terms of the building of both Blocks A and B generally (including the superstructure) were found to be defective. The degree to which they were defective — namely, whether they were seriously defective such that the whole of the structures required demolition in any event, or merely defective such that they required remedial works short of demolition — is in issue. The decision to demolish Block A was made in May 2016 and demolition of that block commenced in July 2016. Remedial works were already underway to Block B when the demolition of Block A took place, as those remedial works had commenced in May 2016. A decision to demolish Block B was then made in September 2016, part of the way through the remedial work for that block, and that demolition commenced in November 2016.
Secondly, Beattie Construction had its engagement under the JCT Design and Build Contract form terminated by BPN on 27 August 2015. The works were therefore left uncompleted and another contractor, RG Carter Ltd (“Carter”), was engaged both to inspect the works performed by Beattie Construction prior to its termination, and also to complete the works, left unfinished by Beattie Construction as a result of that termination. There is, again, extremely limited evidence concerning the process whereby one company, BPN, decided to, and then did, terminate the contractual engagement of another associated company, Beattie Construction, where both of those companies had at least some directors in common, not least Mr Ron Beattie. However, the investigation by Carter of the work actually performed by Beattie Construction, and also investigations by Canham itself,...
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