Carillion Jm Ltd v Phi Group Ltd Robert West Consulting Ltd (Third Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 15 June 2011 |
| Neutral Citation | [2011] EWHC 1379 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case Nos: HT-09-152 and HT-10-111 |
| Date | 15 June 2011 |
[2011] EWHC 1379 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Akenhead
Case Nos: HT-09-152 and HT-10-111
and
Peter Fraser QC and Serena Cheng (instructed by Dickinson Dees LLP) for the Claimant
Martin Bowdery QC and Ronan Hanna (instructed by Mills & Reeve LLP) for the Defendant in HT-10–11
Simon Hughes QC (instructed by Fishburns) for the Defendant in HT-09–152
Hearing dates: 21–4, 28–31 March and 4–6, 15 April 2011
This case relates to a train servicing depot just to the west (broadly) of the Wembley Football Stadium, which was designed and built between 2004 and 2006 as the new stadium was itself being constructed. The Claimant, Carillion JM Ltd ("Carillion"), was the main contractor engaged by M40 Trains Ltd to carry out these works. The main railway line, built in Edwardian times and linked to Marylebone Station, is located between the depot and the stadium. To create the space for the depot, very substantial excavations had to be made into the clay ground which had the effect of leaving 70° to 80° slopes which both during and in spite of the works have become unstable.
In two related Claims, Carillion have proceeded against Phi Group Ltd ("Phi"), its specialist design and build contractor for what is called the "soil nailing work", done supposedly to restrain the slopes and render them stable and against Robert West Consulting Ltd ("RWC"), its consulting engineers and lead consultants for the overall works. Carillion have settled with Phi but there remain unresolved Part 20 proceedings between Phi and RWC in relation to contribution. In the second Claim, Carillion pursues RWC for the balance of its claim. Although substantial elements of liability are effectively albeit very belatedly admitted, there remain major issues between the parties as to causation and as to quantum. As the major part of the remedial works has not yet been started, quantum issues include not only programming and planning issues but, importantly, the extent to which Chiltern Railways ("Chiltern") who operates trains on the main line and service its trains in the depot will be disrupted by the remedial works when they are executed.
It is important at the outset that there is an appreciation that in ordinary circumstances clay slopes, at anything approaching 70° to 80°, would not and should not be left unsupported for any significant amount of time. London Clay is and has for many years been known to give rise to different types of instability. Well-known in the Technology and Construction Courts are cases involving subsidence and heave of London Clay, but these have not been the problems in this case. Two types of instability have occurred here: shear face instability in the upper layers of clay and a deep-seated instability in the underlying clay.
What happened here, and there is no dispute about this, is that, in January 2005 and again in October 2005, whilst the construction works were still proceeding, there were slips of the clay in the upper layers which were addressed by remedial works. Following completion of the overall work, the deep-seated instability, which it is accepted is present, was discovered, it never having been actually appreciated beforehand by anyone to have been present or adequately guarded against. The shallower instability led to the slips in 2005 whilst the deep seated instability is the subject matter of the current proceedings. Both types of instability can be influenced by the presence of water and what will and does feature in these proceedings and this judgement is what is known as the "ru" value, which is the water or "pore" pressure factor used in the various calculations and assumptions made by the designers and design reviewers.
The Site, the Works and the Site Investigations
Historically the area of the depot building comprised farm land. It is unlikely that the land was wholly flat given the presence of streams and the proximity of Wembley Hill. The ordnance survey map for 1875 showed the site and surrounding area as rural and occupied by fields with isolated trees, orchards, hedges and streams; there were farms to the north and south. By 1896, a small amount of residential buildings had appeared to the south west of the site and Wembley Park with Wembley Tower had been built near to the north and east. By 1914, the site had been partly occupied by the railway lines of the Great Central Railway; the railway lines were in a cutting and the land from the West had been sloped down towards the cutting. By 1935, Wembley Stadium had been built and extensive residential expansion had occurred to the south of the site. By the time that Laing Technology Group produced its Geo-Environmental Desk Study Report in August 2001, further residential housing had been established to the south and west of the site and the site itself comprised rough grass, overgrown areas, scrub and trees; as its title suggests this report was concerned more with the presence of contaminants and the like.
Laing Technology Group produced another document entitled "Preliminary Geo-Environmental Site Assessment Report" dated September 2001 which again was primarily produced to provide data "to allow the environmental liabilities of the proposed redevelopment to be assessed as well as to provide recommendations pertaining to the potential health and safety implications". It is not suggested that this contains information of particular relevance to the issues in this case.
Of most relevance are the ground investigation report dated June 2003 and the Interpretive Report dated September 2003, both provided by URS; these were known collectively known as the "URS Report". URS reported that London Clay predominated over the site. Seven shallow boreholes (down to 8 m) and eight deeper boreholes (up to 30 m in depth) were carried out. Piezometers, used to measure the head or level of groundwater, were used. Some undisturbed samples were taken for analysis. URS had regard to the earlier Laing Technology Group reports. The URS report did not as such find any failure planes or shear surfaces in the clay; these are discontinuities within the clay where historically one part of the clay has sheared from another part leaving often a recognisable, often almost polished, surface.
Paragraph 7.2 of the September 2003 URS Report addressed groundwater which had been the subject matter of observations between March and August 2003:
"Groundwater indicated from the site investigation activities, and subsequent instrument monitoring is summarised in Table 7.2.
The groundwater observations indicate no consistent trend in water level across the site. However, generalisations may be made for incorporation in the geotechnical design, as follows:
• Where encountered, groundwater bodies tend to be associated with relatively high permeability claystone bands. These tend to be of local occurrence, and it may be anticipated that the water represents perched bodies of a minor lateral extent.
• The highest standing water level recorded was at c. 36.0m OD [Ordinance Datum] in RW4. This lies below the maximum extent of anticipated excavation within the works, but may affect pile design.
On the basis of groundwater observations to date, it is concluded that groundwater will not significantly affect near surface excavations or the design of shallow foundations. Local bodies of perched near surface water should be anticipated during construction, although these are likely to be of minor extent and drain rapidly as works progress. Piles should be designed for a water table at 38 m OD (i.e. 2 metres above the highest recorded level). The assessment of the stability of slopes should be undertaken incorporating a suitable ru value to allow for local perched water conditions, and infiltration into the slope…"
RW4 was one of the deeper boreholes, located along the slope which was to be created, and Table 7.2 recorded that water seepage was noted during the boring at 17.8 and 28.10 m below ground level but the piezometer, which extended only to 10 m below ground level noted water at a level of 5.09 m below ground level.
The URS Report in Paragraph 9.32 identified what are called "characteristic peak strength values" for the clay material and produced at Table 9.1 a "Summary of Geotechnical Parameters".
The works to be done comprised creating an access bridge over the railway lines from the Wembley Stadium side and the excavation of very substantial quantities of (mostly) clay from the land which sloped down to the existing railway cutting. Given the proximity of the site boundary on the western side of the site, abutting as it did an open park or space and residential housing, substantial slopes up to about 8 metres high were to be left following the excavation. These slopes could not be expected to stand unsupported. In the middle of the slope there was to be located the substantial depot building, into which the trains would be driven to be serviced, repaired and refuelled. The western wall was to be a substantial concrete retaining wall, a primary function of which was to support the slope along its length.
The remainder of the slope was, ultimately, to be supported by "soil nailing". In simple terms, this comprised the boring of numerous holes down into the clay slopes at an angle lower than horizontal; steel bars would be inserted into the holes which were then to be filled with grout. The outer face of the slope was to have steel reinforcing mesh placed over it with the steel bars protruding through; the heads of...
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