Halcrow Group Ltd v Blackpool Borough Council and Another
| Jurisdiction | England & Wales |
| Judge | Judge Raynor |
| Judgment Date | 01 November 2016 |
| Neutral Citation | [2016] EWHC 3596 (TCC) |
| Docket Number | Case No: C50MA008 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 01 November 2016 |
[2016] EWHC 3596 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
TECHNOLOGY & CONSTRUCTION COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
His Honour Judge Raynor QC
(sitting as a Judge of the High Court)
Case No: C50MA008
Mr. D. Fearon (instructed by Weightmans LLP) appeared on behalf of the Claimant.
Mr. S. Whitfield (instructed by Hill Dickinson LLP) appeared on behalf of the First Defendant.
Mr. V. Moran, QC (instructed by BLM) appears on behalf of the Second Defendant.
Judgment (As approved by the Judge)
[Judge's Note: quotations from documents have not been checked]
Halcrow is a global engineering consultancy. By an agreement made with Blackpool Borough Council, Halcrow undertook the design of a culvert extension at Manchester Square in Blackpool, the design being completed in January 2010. Thereafter, in 2010, 2011 and subsequently damage was sustained first, to the roof of the culvert and the promenade above and, second, to a security gate. A claim was intimated by the Council and arbitration proceedings ensued. The arbitration hearing lasted five days in November 2015, the award of the arbitrator, the second defendant, Mr. Gordon Bathgate, being dated 28 th January 2016.
In these proceedings, Halcrow seek permission to appeal against the award under s.69 of the Arbitration Act, 1996 and/or the setting aside of the award for serious irregularity under s.68.
The contract between the parties incorporated the ICE arbitration procedure. Relevant provisions of that procedure are r.7.4(d)(e) and (f), which are in the following terms:
"7.4) The arbitrator shall have power to decide all procedural and evidential matters, including but not limited to
(d) whether to apply the strict rules of evidence or any other rules as to the admissibility, relevance or weight of any material, oral, written or other sought to be tendered on any matters of fact or opinion, and the time, manner and form in which material should be exchanged and presented.
(e) whether and to what extent the arbitrator should himself take the initiative in ascertaining the facts and the law and,
(f) whether to rely upon his own knowledge and expertise to such extent as he thinks fit."
The other relevant rule is r.13.3, which relates to evidence and provides:
"The arbitrator may order that experts appear before him separately or concurrently at the hearing so that he may examine them inquisitorially, provided always that at the conclusion of the question and by the arbitrator the parties or their representatives should have the opportunity to put such further questions to any expert as they may reasonably require."
The hearing lasted from 16 th to 20 th November 2015. The arbitrator had before him a very substantial body of evidence and heard evidence from nine witnesses.
The Council adduced evidence from two factual witnesses and three expert witnesses. The factual witnesses were Mr. Pomfret, the project manager and Mr. Arnold, the clerk of the works. The expert witnesses were Mr. Cookson, a quantity surveyor, Professor Alsopp, a wave pressure expert and Mr. Wyatt, a structural engineer.
Halcrow's witnesses of fact were Mr. Robert Shaw, its principal engineer and project manager, Mr. Glennerster, the director of coastal engineering and Mr. Symes, whom I shall describe in a moment. There was one independent expert witness, Mr. Bell, Halcrow's wave pressure expert. It should be noted that Halcrow, unlike the Council, had no independent expert engineering witness.
Mr. Symes is a chartered civil engineer and a specialist in structural design of marine structures. However, as the skeleton argument prepared by Mr. David Fearon, counsel for Halcrow confirms, Mr. Symes was called as a witness of fact, although he had no involvement in the project prior to March 2012 and his witness statement contained extensive opinion evidence as to the causes of the damage. In the end, the arbitrator took no account of his opinion evidence and that is a matter about which substantial complaint is made by Halcrow in the s.68 application.
Both sides were represented by experienced counsel, Mr. David Fearon for Halcrow and Mr. Simon Whitfield for the Council. The arbitrator, Mr. Bathgate is a highly experienced chartered civil engineer and chartered arbitrator and his CV is at B5, tab 12.
The culvert is in three sections, section 0 being seaward, section 1 in the middle and section 2 landward. As far as the damage is concerned, it is necessary to separate the damage to the culvert roof and promenade above from the damage to the gate.
First, the culvert roof and promenade. As will be seen, the statement of claim alleged that the defect concerned the roof of culvert 1, although damage was noted to the promenade above culverts 1 and 2. In photographs 2,3,4,7,8 and 9 on p.493 of B3 damage is shown to the promenade above culvert 2.
The essential allegations are in para.2.3 of the statement of claim, as follows:
"2.3.1) Raising the roof at Culvert 1 has created an internal pressure trap in the marine structure (culvert). The respondent has admitted to selecting a methodology (Exposed Jetties — for open water progressive waves) that is not appropriate (for the dissipated/throttled waves): there is also no evidence of the Respondent using the prescribed care when using exposed jetties for structures that are not exposed.
2.3.2) The Respondent also identified the main issue it perceived being entrapped air, but neglected to consider/design adequately for such. The Respondent has also not designed internal structures within the raised roof at Culvert 1 for foreseeable loadings.
2.3.3) Due to the alleged breaches in this Statement of Claim, the design of the Culvert 1 roof/public promenade has not adequately addressed foreseeable loadings/mechanisms.
2.3.4) It is alleged that the culvert roof/public promenade has suffered damage due to the design not being sufficient for foreseeable loadings/mechanisms.
2.3.5) The claimant agrees with the provided statement in figure 24, the lesson learnt being to have a constant cross-section in the culvert to remove the pressure trap. To be in keeping with the rest of the design the internal roof at Culvert 1 would have to be lowered to the same height as the roofs at the adjacent Culvert 0 and Culvert 2.
2.3.6) Pressure relief also needs to be provided in any case. This is on the basis of safety, to ensure the pressure is not transmitted further down the culvert to adjoining employer's and the third party's critical infrastructure.
2.3.7) The construction work to lower the Culvert 1 roof has been estimated at £157,967. Added to this is the following:
• an estimate of £10,000 for adequate pressure relief as a safety measure;
• an estimate of £25,000 for design fees;
• an estimate of £5,000 for site supervision."
It will be seen that paras.2.3.3 and 2.3.4 are pleaded in wide terms, as was para.2.2.10 on p.503 which stated that:
"If the consultant did not provide for the marine structure, that is the culvert at Manchester Square, to be designed for loadings induced from the marine environment (e.g. wave/air induce pressures/forces) in the design criteria and methodology report, then it is alleged that this is a clear breach of cl.21.2."
It is also important to note that the claim which is pursued is the cost of lowering the culvert 1 roof, not repairing the cracks to the promenade nor, indeed, any work to the culvert 2 roof, and it is that cost minus £10,000 which the arbitrator awarded.
As to the gate, paras.3.2.11 and 3.2.13 on p.525 of B3 were in the following terms:
"3.2.11) Following its repair; for the gate to fail under normal wave action (no significant storm or evidence of being struck by debris) due to one (of four) missing bolts, appears to be a very lean design. Too lean from either not calculating the correct loading and/or not having a sufficient factor of safety.
3.2.13) It is demonstrated from the calculations that the gate has not been designed for dynamic load effects as per the static water head calculation."
After a second failure, it was discovered that whereas Halcrow's design had called for four bolts, only three bolts had been fixed by the contractor and as will be seen, Halcrow also alleged additional construction defects.
In the points of defence, Halcrow's case, first as regards the culvert and promenade damage, was summarised at 3/534
In para.54 on p.544, it was alleged that:
"The failure of the upper promenade can be broken down into two sections,
54.1) longitudinal cracking above the culvert section one side walls and
54.2) rotational settlement of the upper promenade pavement slabs above culvert section two, leaving 'steps' between adjacent slabs and cracking of slabs."
In its closing written statement, its core submissions were stated as follows under the heading, "Causation and construction defects":
"24. The claimant has not proven that the damage of which it complains was in any way caused by any such alleged failure, nor could it, because it was not.
25. The claimant has identified a number of instances of damage to the promenade and storm gates to the culverts. It asserts that the damage in question occurred as a consequence of these aforementioned alleged breaches of the respondent's design obligations.
26. They do not, and crucially, and fatally for the claimant's case, nowhere has the claimant proved how any...
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Table of cases
...holdings pty Ltd v Denham Constructions pty Ltd [2016] NSWSC 1120 II.11.54, III.24.219 halcrow Group Ltd v Blackpool Borough Council [2016] EWhC 3596 (TCC) III.25.245 hale v Victoria plumbing Co Ltd [1966] 2 QB 746 II.6.420 halesowen presswork & assemblies v National Westminster Bank Ltd [1......
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Arbitration
...EWHC 2904 (Comm); F Ltd v M Ltd [2009] EWHC 275 (TCC) at [9]–[17], per Coulson J; Halcrow Group Ltd v Blackpool Borough Council [2016] EWHC 3596 (TCC) at [97]–[102], per HHJ Raynor QC. 932 Where the purported exercise of power has caused or will cause substantial injustice to the applicant ......