Harmon Cfem Facades (Uk) Ltd (Plaintiff) v The Corporate Officer of The House of Commons
| Jurisdiction | England & Wales |
| Judgment Date | 28 October 1999 |
| Judgment citation (vLex) | [1999] EWHC J1028-11 |
| Docket Number | Case No: 1996 ORB No 1151 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 October 1999 |
[1999] EWHC J1028-11
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
His Honour Judge Humphrey Lloyd Q.c.
Case No: 1996 ORB No 1151
Richard Fernyhough QC and Michael Bowsher appeared for the plaintiff, instructed by Wragge & Co.
Andrew White QC, Fiona Parkin and Geraint Webb appeared for the defendant, instructed by Berwin Leighton.
Date of Judgment:28 October 1999
Pursuant to the Practice Statement of 22 April 1998 this is the official judgment of the court and no note or further record is to be made.
His Honour Judge Humphrey LLoyd QC
In this action, the plaintiff (Harmon) claims damages from the defendant (H of C) for breach of the law relating to the procurement of public works contracts and on other grounds. It is alleged that H of C was not entitled to award a contract to one of Harmon's competitors and that it discriminated in favour of the successful tenderer so as to infringe a number of provisions of European and domestic law. The claim stems from a project to build a New Parliamentary Building (NPB) for the House of Commons in Bridge Street, Westminster. The NPB is to provide offices for some 210 Members of Parliament and their staff, together with committee rooms and other accommodation. The brief to the architects was to design a building with a planned life of 200 years which was to be a "showpiece of British design". It is to be known as "Portcullis House". Its foundation stone was laid or unveiled on 3 February 1998 by the Speaker. At that time the cost for the building was estimated to be £250 million (including allowances for inflation, furnishings, equipment, professional fees and VAT) . It is therefore one of the most expensive buildings ever to be built in London. Harmon tendered for the works contract for the fenestration but the contract was given to a company, Seele Alvis Fenestration Ltd, a company specially formed to take over the tender submitted by a consortium comprising an German company, Glasbau Seele GmbH (Seele for short) , and a British company, Alvis Vehicles Ltd (Alvis) , a subsidiary of Alvis Plc. The fenestration was far from ordinary or orthodox. It is not merely a cladding system or a curtain wall but functions as an integral component of the building in engineering terms. It is probably the most expensive fenestration system ever built partly as a result of the need to provide a facade which would be proof against terrorist attack and against bomb blast and the choice of the material considered necessary by the architects and engineers to achieve these objectives. More information about the building is to be found in the extracts from the contract documents which are in the appendices to this judgment. At this stage, I have to deal with a large number of preliminary issues agreed by the parties, many of which are complex both in fact and in law. They and my answers to them are to be found at the end of this judgment, the scheme of which will be first to describe the people involved and to outline the legal and factual background to the project and to the issues, before turning to the issues themselves.
Those Involved
The defendant is a corporation sole established by the Parliamentary Corporate Bodies Act 1992. Section 2(1) of that Act created the defendant as a corporation sole with power to sue and be sued like any other corporation sole. Subsection (2) gave it power to enter into contracts for the House of Commons and to do anything reasonably necessary or expedient for, or incidental to, that power. Section 2(1) states that the Corporate Officer is in fact the Clerk of the House of Commons who as head of his department is accountable to the House of Commons Commission. Until December 1997 this office was held by Sir Donald Limon. The Commission was initially created in 1800 and derives its present authority from the House of Commons (Administration) Act 1978, by section 2 of which it is required to appoint all staff of the House of Commons and to establish their conditions of service. Until 1 May 1997, its membership comprised the Speaker, the Rt. Hon. Tony Newton (Leader of the House) , the Rt. Hon. Ann Taylor (Shadow Leader) , the Rt. Hon. Paul Channon, Mr Alan Beith and Mr John Garrett. In 1992, the two Houses of Parliament established the Parliamentary Works Directorate (PWD) . This was the successor to the Parliamentary Works Office (PWO) , which had been responsible for carrying out works for Parliament including procuring the construction of the NPB. The House of Commons has an Accommodation and Works Committee (AWC) , but, as constituted, its powers are limited to making recommendations to the Commission or to the Speaker. Standing Order 142 of the House provides in part as follows:-
"(1) There shall be four select committees to consider the services provided for the House in regard to the following matters
Accommodation and Works
2. Administration
...
(4) Each committee appointed under this order shall have power-
(a) to send for persons, papers and records, to sit notwithstanding any adjournment of the House, to adjourn from place to place, and to report from time to time;
(b) to appoint specialist advisers either to supply information which is not readily available or to elucidate matters of complexity within the committee's order of reference;
(c) to communicate to any other such committee, or to the Finance and Services Committee appointed under Standing Order No. 144, or to the Broadcasting Committee appointed under Standing Order No. 139, or to the House of Commons Commission, its evidence and any other documents relating to matters of common interest; and
(d) to meet concurrently with any other such committee, or with the Finance and Services Committee, or with the Broadcasting Committee, for the purpose of deliberating or taking evidence.
(5) Each committee appointed under this order shall have leave to meet concurrently with any committee of the Lords on House of Lords Offices or any sub-committee of that committee, for the purpose of deliberating or taking evidence, and to communicate to any such committee or sub-committee its evidence or any other documents relating to matters of common interest.
(6) Each committee appointed under this order shall have power to make recommendations to the House of Commons Commission or to the Speaker; but any such recommendation whose implementation would incur additional expenditure from the Votes for House of Commons (Administration) or (Works) shall also be considered by the Finance and Services Committee.
(7) Each committee appointed under this order shall have power to make rules and give directions to Officers of the House in respect only of such administrative matters as may from time to time be determined by the Speaker or by the House of Commons Commission."
Until 1 May 1997, the members of the Accommodation and Works Committee were Sir Raymond Powell (Chairman) , Sir Sydney Chapman, Mr Derek Conway, Sir Patrick Cormack, Dame Peggy Fenner, Mr George Mudie and Mr Simon Hughes. Regular reports were given to the AWC on the progress of the project and, as will appear, its views were considered to be more than merely advisory, as one might expect since the NPB was being built for members of the House of Commons. At this point I ought also to record that I was warned from time to time by Mr Andrew White QC for the defendant (sometimes leaving me with the impression that the intervention was only for forensic or tactical reasons) not to trespass on matters of Parliamentary privilege, a matter which I had to consider at an interlocutory stage. In essence Mr White was properly anxious that, for example, at the trial, there should be no cross-examination that would or might infringe section 1, article IX of the Bill of Rights 1689 which provides:
"That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament."
It precludes the Court from impeaching or questioning proceedings in Parliament (see Erskine May:Parliamentary Practice, 22nd Edition at page 93; and Pepper v.Hart [1993] 1 AC 593 and Prebble v. Television New Zealand Ltd. [1995] 1 AC 321) . Mr White submitted, correctly, that questions about the fact that something had occurred in Parliament (including its committees) were permissible but questioning or challenging the motivation or the reasons why something may or may not have happened were not. As will become apparent I do not consider the motivation or the reasons of any body other than the defendant, in so far as they can be discerned or attributed to it.
I was also originally also told by counsel for the defendant that apparently neither the Speaker, nor the House of Commons Commission nor the Accommodation and Works Committee (AWC) has authority to give directions to the defendant, although it is accountable to the Commission. In operational terms the project sponsor of the NPB was Mr. Andrew Makepeace. He was a civil servant with the Department of the Environment (DOE) from 1964 until 1995 when he became a member of the staff of the House of Commons. He was seconded to the Public Works Office in 1986 and became the project sponsor for the NPB in 1987. He joined the PWD when it was created. A project sponsor has full personal responsibility for the successful completion of a capital project and is in effect the client of those engaged by the defendant for that purpose. Mr. Makepeace submitted reports to the AWC and to the Commission through Mr. Henry Webber, who was the Director of Works of the PWD. Mr Peter Linge was the Contracts Officer for the PWD. Mr Webber and Mr Makepeace would attend meetings of the AWC and of the Commission when invited but would not necessarily be present...
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