Durham County Council v Jeremy Kendall (Trading as HLB Architects)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 31 March 2011 |
| Neutral Citation | [2011] EWHC 780 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-1145 |
| Date | 31 March 2011 |
[2011] EWHC 780 (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 No: HT-1145
Steven Walker (instructed by Dickinson Dees LLP) for the Claimant
Duncan McCall QC (instructed by Beachcrofts LLP) for the Defendant
Hearing date: 11 March 2011
Mr Justice Akenhead:
In this Claim, Durham County Council ("Durham") seeks to enforce the decision of an adjudicator, Mr Keith Pickavance ("the Adjudicator") dated 18 November 2010. The case raises issues as to the extent that the underlying contract or contracts were in writing or evidenced in writing as required by Section 107 of the Housing Grants, Construction and Regeneration Act 1996 (" HGCRA"), whether if disputes arise under more than one contract they are referable to a single adjudicator and issues as to waiver in relation to jurisdictional points taken only in court and not before the adjudicator.
The History and Factual Background
In about April 2003, Durham (then Sedgefield Borough Council which I will refer to as "Durham") invited tenders for the provision of services in connection with the design and construction of an extension to Spennymoor Leisure Centre ("the Project"). These were described in a document entitled "Lead Consultant's Brief" dated March 2003. HLB, a firm of architects of which the sole proprietor was Mr Jeremy Kendall, was one of the firms invited to tender. The Brief described the work which was mainly an extension to the Centre comprising a new gym with associated facilities. Paragraph 1.3 made it clear that the scheme would be project managed by the Lead Consultant and the project would be funded by Durham together with funding from Sport England and other sources. Paragraph 2.3 stated:
"Sufficient site investigations to determine ground conditions and location and adequacy of existing services will need to be carried out by the appointed Consultant once the outline details of the scheme are confirmed…"
Paragraph 3.1 stated:
"The appointed Lead Consultant will be required to bring together ideas, observations, perceptions and ultimately establish a common understanding of the building which will provide all the requirements and facilities for all the partners involved in the project…"
Paragraph 4 identified that the scheme was divided into four parts:
"Part 1-Pre Feasibility Concept Development Ideas (already completed)
Part 2-Confirm Part 1 and Feasibility Study with Cost Plan and Detailed Presentation
Part 3-Detailed Design, Bills of quantities and all Works prior to Tendering
Part 4-Construction Works, Contract Administration and all Work up to and including final account"
Paragraph 6 sets out what was involved in Part 2, which unsurprisingly dealt "with the feasibility of the scheme to establish the most appropriate form of construction, design and layout, infrastructure…external and internal appearance, landscaping and security". A detailed cost plan was needed together with a preliminary timetable. A detailed presentation with drawings, brochures, technical information and the cost plan was to be provided.
Part 3, described in Paragraph 7, involved the preparation of a detailed design with "the majority of the design works [to] be carried out by the Consultants…" and the production of all relevant information, and drawings and Bills of Quantities. Part 4, described in Paragraph 8, required the Lead Consultant to ensure that the construction process was carried out in accordance with the design drawings, Bills and other agreed specifications. Effectively, the Lead Consultant was to administer the construction contract.
Paragraph 9 required the Lead Consultant to be responsible for appointing and paying all other Consultants (Paragraph 9.1). Paragraph 9.11 required that the tender to be submitted was to include at each stage of the work for costs and disbursements. Paragraph 9.14 referred to an attached programme which showed that the Part 2 services were to be completed by 4 July 2003. Paragraph 9.18 stated that the "appointed Lead Consultant shall enter into a formal agreement with the Borough Counsel for the appointment and performance of professional duties in connection with this Brief". An Addendum to the Brief indicated that the Lead Consultant was to "include the provision of gymnastic equipment as part of the project", it having an additional budget of £150,000.
Mr Kendall, who described himself as partner of HLB Architects, filled in the prescribed form of tender and submitted it on 1 May 2003. The quoted price for the Part 2 services was £14,940. For Parts 3 and 4, he quoted 3.67% and 1.715% respectively, this clearly being related to the final construction costs. He also quoted rates for additional related work outside the scope of the brief; these rates related to the four relevant disciplines, Architect, Quantity Surveyor, Structural Engineer and Mechanical and Electrical Engineer. He stated:
"I understand that Parts 3 and 4 will only proceed once the council has agreed funding for the project".
At Paragraph 7 he stated:
"I/We agree to our tender remaining open for acceptance for a period of two months from the date set for submission of tenders."
However, more than two months elapsed before Durham wrote to HLB by way of the e-mail on 8 August 2003:
"I am pleased to advise you that the Council wish to appoint you as the Lead Consultant for the above project.
As the scheme is subject to funding from Sport England we do not have in place the full approval to proceed with carrying out the work contained within our 'Brief'. However, in order for the project to progress the Council are prepared to fund Part 2 of the scheme only. The work involved includes confirming Part 1 and to undertake a Feasibility study with a Costing Plan and Detailed Presentation to the Client, the cost of this work is as per your tender sum of £14,940.00.
Once I am in receipt of any further information regarding approvals from Sport England to proceed beyond Part 2 of the scheme I will advise you accordingly, meanwhile I would be obliged if you will contact me to arrange a meeting so we can progress the scheme…"
On 12 August 2003, a meeting was arranged between Mr Thompson of Durham and Mr Bulmer of HLB and was clearly a follow up meeting following the e-mail. It seems clear that HLB was tasked with minuting that meeting. It was primarily a technical discussion as to the implementation of the Part 2 services. So far as is material to the issues in the case the following was minuted:
"4.0 RTB to organise site investigation.
IT thought this was part of consultants and.
RTB said the consultants usually arranged but costs usually paid by client-as planning/ building regulations.
RTB will check and confirm with IT.
9.0 Programme
9.1 Arrange survey of site existing/building perimeter within 10 days.
9.2 Arrange site investigation within next two weeks…
9.4 Develop Feasibility/Design Proposals/Services beginning Sept '03–3–4 weeks
9.5 Develop agreed layout, services and cost plan for presentation 2/3 weeks end of Sept/Oct '03."
Mr Kendall gives some evidence in his witness statement dated 8 March 2011 that the question of who should pay for the site investigation was discussed initially between Mr Bulmer and the consulting engineers to be retained and that as between them it was agreed that each would pay the costs on a 50:50 basis. He says then that he spoke to Mr Thompson of Durham and agreed orally with him that his firm would bear the costs. Be that as it may, this was confirmed in writing by Mr Thompson of Durham in its letter dated 10 September 2003 to HLB in the following terms:
"As discussed and agreed at the meeting between myself and Richard Bulmer the cost of the site investigation should be included in the fee bid for the Feasibility Study as stated in the Lead Consultant's Brief item 2.3, a copy of which is enclosed."
I will refer to this as the "site investigation issue".
There is no doubt that HLB then carried out and completed the Part 2 Services. On 5 February 2004 HLB submitted its Interim Fee Account No. 2 which sought payment for additional design changes "in accordance with Time Charges as our Accepted Form of Tender".
On 2 March 2004, Durham wrote to HLB in the following terms:
"I confirm the Council's request for you to commence work on Part 3 of your tender for the above project. This involves the Detailed design, Bills of Quantities and all works prior to tendering.
You should now be in a position to provide a detailed cost plan together with a preliminary timetable from design to construction and completion and a planned expenditure profile in accordance with the requirements of Part 2 of your tender.
Please contact me if you require any further information or have any queries with regard to the above."
Again, there is no issue that HLB proceeded to do what this letter called for.
On 9 August 2004, Durham sent to HLB letter stating:
"This letter is to confirm the Borough Council's intention to proceed with the project to construct a new regional gymnastics centre at Spennymoor Leisure Centre. Although the Borough Council's Cabinet do not meet until the 2 September 2004 at which time they will formally agree to the scope of the project in line with our recent discussions, this letter confirms the Council's intention to agree the purchase of the steel contents of the project…
As Director of Leisure Services I am authorised to send this letter of intent."
On the 6 August 2004 HLB wrote to Durham relating to meetings and discussions with a Mr Pirrie who was the gymnastics consultant retained by Durham. Mr Pirrie recommended certain changes. Mr...
To continue reading
Request your trial
-
Brims Construction Ltd v A2m Development Ltd
...as an adjudicator deciding a dispute which has not been referred to adjudication). The question of waiver was considered in Durham County Council v Jeremy Kendall [2011] EWHC 780 (TCC) in the review of a number of previous cases which also considered how reservations as to jurisdiction shou......
- WRP Asia Pacific Sdn Bhd v NS Bluescope Lysaght Malaysia Sdn Bhd (formerly known as Bluescope Lysaght (Malaysia) Sdn Bhd) (and Another Originating Summons)
-
Gerard Ferns v Keith West
...(t/a India Kitchen) [2007] EWHC 3467 (TCC), a decision of Hickinbottom J, as he then was, now Hickinbottom LJ; Durham County Council v Jeremy Kendall (t/a HLB Architects) [2011] EWHC 780 (TCC), a decision of Akenhead J, who was not only a TCC judge, but was the Judge in Charge of the 18 H......
-
MG Scaffolding (Oxford) Ltd v Palmloch Ltd
...Palmloch, and seeks to distinguish the decision of Akenhead J in Durham County Council v Jeremy Kendall (Trading as HLB Architects) [2011] EWHC 780 (TCC), as discussed further below. Finally, Palmloch deny waiver on the basis that its reservation of rights was plain throughout. Discussion ......
-
2011 Construction Case Law Summary
...CN Associates (a firm) v Holbeton Limited [2011] EWHC 43 (TCC) and Durham County Council v Jeremy Kendall (t/a HLB Architects) [2011] EWHC 780 (TCC) Adjudicator's jurisdiction: These two cases are a useful reminder that where you disagree that the adjudicator has jurisdiction to decide a di......
-
Adjudication: Was There A Contract And/Or Was There a Contract Evidenced In Writing?
...least are evidenced in writing are suitable for adjudication. The case of Durham County Council v Jeremy Kendall (t/a HLB Architects) [2011] EWHC 780 (TCC) (31 March 2011), which came before Mr Justice Akenhead, and dealt with this very issue may therefore be one of the last of its However ......
-
Table of cases
...Law Rep 365 I.5.139 Durham Bros v Robertson [1898] 1 QB 765 III.20.60, III.20.61 Durham County Council v Kendall [2011] BLR 425; [2011] EWHC 780 (TCC) I.2.93, II.6.84, II.6.84, III.24.64 Durian Pty Ltd v Penrith CC (1991) 10 Const LJ 129; [NSWCA] 9 BCL 199 I.2.15, I.3.33, II.6.05, II.7.37 D......