Brian Warwicker Partnership v HOK International Ltd
| Jurisdiction | England & Wales |
| Judge | The Vice Chancellor,Lady Justice Arden,the Vice Chancellor,Lord Justice Keene |
| Judgment Date | 27 July 2005 |
| Neutral Citation | [2005] EWCA Civ 962 |
| Docket Number | Case No: A1/2005/0045(Z) -AND- A1/2005/0045 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 2005 |
[2005] EWCA Civ 962
the Vice Chancellor
Lady Justice Arden and
Lord Justice Keene
Case No: A1/2005/0045(Z) -AND- A1/2005/0045
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TECHNOLOGY & CONSTRUCTION COURT
Mr Recorder Blunt QC
HT 03 81
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justin Mort (instructed by Nabarro Nathanson) for the Appellant
Mr Ben Patten (instructed by Pi Brokerlink) for the Respondent
Introduction
In 1994 Burford NW3 Ltd ("Burford"), the owner of 241-279 Finchley Road, London, NW3 wished to develop the same. For that purpose it engaged the services of, amongst others, an architectural practice, HOK International Ltd ("HOK") and a firm of mechanical and engineering consultants, Brian Warwicker Partnership ("BWP"). In due course the site was developed to provide a three storey building incorporating a mix of retail, leisure and restaurant facilities including a supermarket and a cinema. It is called the O 2 Centre. It has an entrance on to the Finchley Road to the east and, at a lower level, to a car park to the west.
A problem arose because the doors at both entrances were automatic and there was no wind-barrier within the building to prevent a through flow of air in the event of the doors at both entrances being open at the same time. There was also a question whether the problem was exacerbated by the shape of the façade at the Finchley Road end having the effect of funnelling an easterly wind towards the entrance.
The O 2 Centre was opened in November 1998. In the winter 1999 remedial work suggested by BWP was undertaken but proved to be insufficient to remedy the problem. In January 2000 Burford sought the advice of another mechanical and electrical engineer. By December 2001 the further remedial works recommended by that engineer were completed.
On 7th March 2003 Burford commenced proceedings against BWP seeking to recover by way of damages for negligence and breach of contract the cost of that further remedial work. On 6th May 2003 BWP made a Part 20 claim for contribution or indemnity against HOK. The claim of Burford against BWP was settled, without admission of liability, on 22nd April 2004 for £1.25m in damages, interest and costs but the Part 20 claim by BWP against HOK continued. That claim was tried by Mr Recorder Blunt QC over ten days in the summer of 2004. By his order made on 11th November 2004 the Recorder gave judgment against HOK for £398,500 and interest of £11,136. He refused permission to appeal.
By an appellant's notice issued on 10th January 2005 HOK sought permission to appeal on six grounds. On 11th February 2005 Chadwick LJ granted permission to appeal on ground 6 but refused permission to appeal on all other grounds. HOK notified BWP of its intention to renew its application for permission to appeal on grounds 1, 2 and 3, but abandoned grounds 4 and 5. In the event, that application was listed to be heard with the appeal on ground 6. Counsel helpfully prepared full arguments on grounds 1, 2 and 3 so that an appeal on those grounds might be disposed of if permission were granted.
Grounds 1, 2 and 3 relate to certain conclusions reached by the Recorder in paragraph 181 of his judgment. It is contended that such conclusions were not pleaded or supported by evidence. These issues are separate and distinct from ground 6. Ground 6 relates to a conclusion of the Recorder expressed in paragraph 200 of his judgment that acts and omissions which are not causative of loss may be taken into account for the purpose of assessing what (if any) contribution should be ordered pursuant to the Civil Liability (Contribution) Act 1978. HOK contends that such a conclusion is not correct in law.
Grounds 1, 2 and 3
To explain how these issues arise it is necessary to refer in some detail to the pleadings and the course of the trial. The relevant pleading is the Re-re-amended Part 20 Particulars of Claim. In paragraph 5 BWP described the damage for which it and HOK was liable for the purposes of the Civil Liability (Contribution) Act 1978 as:
"the problem of low winter temperatures and unacceptably unpleasant draughts within the Centre and/or the costs to Burford of carrying out remedial works to resolve the problem of low winter temperatures and unacceptably unpleasant draughts within the Centre."
In paragraph 6 the contractual and other obligations of HOK were alleged. In paragraphs 7 to 11 the relevant features of HOK's design were described, including the doors and their juxtaposition, the façade and its effect. In paragraph 12 BWP averred:
"A consequence of the architectural design of HOK was to capture any winds on the north- east elevation, channel them towards the Finchley Road doors and then funnel and/or tunnel them through those doors. In this way the effects of the winds were magnified by being concentrated on that entrance. As a result cold air above what might be described as a normal or usual level of cold air entered the building through the Finchley Road [doors] causing cold draughts causing low temperatures."
Paragraph 14 dealt, at some length, with the alleged breaches of duty. For present purposes it is sufficient to refer to the following:
"14.1 In designing the structure of the Centre HOK failed to have any or any sufficient regard to the factors which might lead to low temperatures and/or discomfort being experienced within the Centre as a result of winds being funnelled and/or tunnelled towards and through the Finchley Road doors. In particular it failed to have regard to:
[(1)
(2)]
(3) the fact that the doors at the Finchley Road end provided no barrier to winds when open, as would be the case, for example, with the use of a lobby or revolving doors;
[(4)
(5)]
(6) the orientation of the Centre, in particular the fact that the Finchley Road doors faced the cold winds from the north- east. Further HOK failed to have any or any adequate regard to the principles of energy conservation in its design."
14.4 HOK failed adequately or at all to co-ordinate its design with that of BWP. BWP will contend it was HOK's responsibility to ensure that no feature of its design would imperil the efficacy of BWP's design. The risk presented by HOK's design was one within architectural expertise, rather than the expertise of a mechanical and electrical engineer. Alternatively, it was a risk which should have been apparent to a reasonably competent architect irrespective of whether it should also have been apparent to a reasonably competent mechanical and electrical engineer. Further and in any event, by reason of its role as lead consultant, HOK was obliged to ensure that the two designs were integrated. In so doing HOK acted in breach of clause 2.1 of the Deed and clauses 1.2, 6.1, 6.4 and 6.6 of Schedule 1 of the Deed and/or clause 3.11 of the Deed and/or clause 3.2.1 of the Deed and/or the like tortious duty.
14.5 HOK failed to consult adequately or at all with BWP as to the design change from manual doors to automatic doors at the Finchley Road end…."
In paragraph 15 BWP set out, at length, what it alleged to be the consequences of the alleged breaches of duty of HOK. It contended that:
"As a result of HOK's design….the areas adjacent to the Finchley Road doors have been subjected to cold draughts and low temperatures during the winter….BWP asserts that they were caused by HOK's breach of duty."
A number of particulars of causation followed including;
"15.1.1. A reasonably competent architect would have advised Burford that unless a lobby or revolving doors were installed at the Finchley Road entrance there was a risk that cold draughts would enter the building and that the internal climate would be adversely affected. Further or alternatively a reasonably competent architect would have advised that this risk required investigation."
"15.3. Had HOK sought adequately or at all to ensure the coordination of its design with that of BWP it would have appreciated that BWP relied upon HOK's assertion that there was no wind problem and that BWP's design made no allowance for abnormal winds and cold draughts through the Finchley Road doors and that if there was a risk of such winds and draughts then there was a risk that BWP's design would not be able to perform to the requisite standard."
The pleading point on which counsel for HOK relies arises from the separate references and allegations to (1) cold draughts from doors being left open, and (2) abnormal winds being funnelled by the façade to the Finchley Road doors.
The Recorder heard evidence from, amongst others, Mr Edward Allan, the BWP director in charge of the O 2 Centre Project. In his witness statement he indicated that as it was the function of an architect to design buildings to keep out the elements so he, as a mechanical and electrical engineer, would assume that the architect had so designed the building that 'uncomfortable' winds would not enter it. He said that he did assume that HOK had studied the likely winds round the centre and that it was satisfied that its design would prevent winds from causing discomfort to those in the Centre. He acknowledged that as a mechanical and electrical engineer he had to consider what winds would enter the building. In paragraph 125 he accepted that:
"(32) In all the circumstances, including the factors above, it seemed to me there was a potential for a small degree of tunnelling but I did not think that there would be a significant risk of uncomfortable winds arising from any tunnelling.
(33) Overall, it...
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