J. Jarvis and Sons Ltd v Castle Wharf Developments Ltd and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON |
| Judgment Date | 19 January 2001 |
| Neutral Citation | [2001] EWCA Civ 19 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2000/0442 A2/2000/2004 A2/2000/6480 |
| Date | 19 January 2001 |
[2001] EWCA Civ 19
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THETECHNOLOGY
AND CONSTRUCTION COURT
His Honour Judge Newman Q.C.
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Gibson
Lady Justice Arden and
Mr. Justice Collins
Case No: A2/2000/0442
A2/2000/0445
A2/2000/2004
A2/2000/6480
Mr. David Friedman Q.C. and Mr. Duncan McCall (instructed by Messrs Eversheds of London for the Respondent)
Mr. Nicholas Dennys Q.C. and Mr. Simon Lofthouse (instructed by Messrs Freeth, Cartwright, Hunt, Dickens of Nottingham for the 1st Appellant)
Mr. Roger Stewart and Miss Kate Vaughan-Neil (instructed by Messrs Kennedys of London for the 2nd Appellant)
Mr. Nicholas Elliott Q.C. and Miss Fiona Sinclair (instructed by Messrs Reynolds, Porter, Chamberlain of London for the 3rd Appellant)
This is the judgment of the court to which each member of the court has contributed.
Each of the three Defendants appeals from the order made on 23 May 2000 pursuant to the judgment delivered by His Honour Judge Cyril Newman Q.C. on 16 December 1999 in the Technology and Construction Court after an 18-day trial ending on 15 July 1999 of certain preliminary issues relating to liability. The Judge held that each of the Defendants was liable to the Claimant, Jarvis & Sons Ltd. ("Jarvis"). The First Defendant, Castle Wharf Developments Ltd. ("Castle Wharf"), was liable to Jarvis which was entitled to receive the value of works carried out for Castle Wharf by Jarvis on a quantum meruit or restitution basis. In addition Jarvis was held entitled to recover in tort any losses as damages for negligence for which Castle Wharf and the Second Defendant, Gleeds Management Services Ltd. ("Gleeds"), were jointly and severally liable. The Judge dismissed a claim that Jarvis was contributorily negligent. The Judge held that the Third Defendant, Franklin Ellis Architects Ltd. ("Franklin Ellis"), was liable in damages for breach of contract and that Jarvis was not contributorily negligent. In Third Party proceedings brought by Castle Wharf against each of Gleeds and Franklin Ellis, the Judge found Gleeds liable to Castle Wharf in respect of certain heads of damages, but he dismissed Castle Wharf's claims against Franklin Ellis.
Sadly, the Judge died before the completion of the order consequent on his judgment and without his judgment being fully revised by him. No one suggests that the order giving effect to his judgment was not properly made. On 19 April 2000 His Honour Judge Havery Q.C., after a 2-day hearing, gave each of the Defendants permission to appeal on the points on which each wished to challenge conclusions of the Judge.
The Background
Castle Wharf is a single purpose company created for the development of a site of that name by the Beeston Canal in Nottingham. Roy Coley, the managing director of Sowden Group Ltd., at all material times was the dominant figure acting for and on behalf of Castle Wharf. Castle Wharf retained Gleeds, a company of quantity surveyors, as its agent to coordinate the development and to pass information to contractors. It also retained Franklin Ellis, a company of architects, as its architect until 1 November 1996. Thereafter Franklin Ellis was retained by Jarvis.
The site was at a prominent and sensitive location in Nottingham. The first phase of the development comprised the demolition of existing buildings and the erection of an office block ("Office A"), a pub/diner, access roads and external works including a pedestrian bridge over the Canal. Office A was intended to be the offices for the Nottingham Evening Post, a newspaper of the Northcliffe Group ("Northcliffe"). Because of the site's importance the planning department of Nottingham City Council ("the planners") took a close interest in the development. An initial attempt to obtain planning permission failed in April 1996. But Mr. Coley was determined to obtain planning permission and to worry about costs only once that had been achieved. On 25 June 1996 planning permission was obtained on the basis of drawings submitted by Franklin Ellis for Castle Wharf, subject to conditions. One elevation, the Wilford Street elevation, was considered of particular importance. The drawing relating to it, drawing 24C, showed a stainless steel roof, a brise soleil and structural glazing. As the Judge was to find, that planning permission was based on a scheme which, when put out to tenderers (not including Jarvis), proved too costly, and a programme of cuts was undertaken to remove what Mr. Coley called "the embellishments" demanded by the planners. The aim was to have Office A completed by October 1997. Mr. Coley wanted the least expensive scheme satisfactory to Northcliffe whose presence in Nottingham the planners wished to retain (there being some prospect of Northcliffe moving to Derby), whilst the planners wanted the high quality of design and architecture based on the planning permission granted and over which the planners, through the conditions imposed, could keep close control.
Those conditions were unusually onerous. They included in condition 2:
"The development should not be commenced until the following have been submitted to and approved by the City Council: -
(a) Details, including samples and colours, of all external materials.
(b) Large scale details of all external doors, security shutters, windows, glazing systems, shop fronts, bays, cladding, louvres, car park entrances, balustrades, canopies, balconies, grilles, eaves.
( c) 1: 50 vertical and horizontal sections through typical elements of all new elevations.
."
Despite the opening words of that condition, it was common ground at the trial that the conditions could be discharged as the works progressed, provided that the works carried out were in general conformity with the permission.
Condition 15 amounted to outline permission only for the design of the pub/diner. Revised elevational details were required.
Castle Wharf and Franklin Ellis entered into discussions with the planners to revise the approved scheme, in such manner as to allow savings to be made without the need to make a fresh application for planning consent. Franklin Ellis on 10 September 1996 produced a list of 22 potential savings on Office A which were discussed with the planners on 16 September. John Lynch, the Assistant Director of Development in Nottingham City Council with responsibility for planning, to whom had been delegated the authority to decide whether variations from the approved scheme were acceptable without a further application for planning consent, made some brief preliminary comments (e.g. in relation to item 13 which replaced structural glazing with cheaper standard curtain walling, the Judge found Mr. Lynch to have said "Technologically safer," although Mr. Lynch's evidence (Day 10 p. 27) was that that was what he was told by Franklin Ellis). Castle Wharf took encouragement. By letter dated 18 September 1996 Gleeds, on behalf of Castle Wharf, invited (amongst others) Jarvis, a building contractor, to tender for the design and construction of the first phase of the development. The letter enclosed various documents, plans and drawings.
Among the documents supplied were the Employer's Requirements. This was a document which was sent out to the first round of tenderers but not properly updated, as can be seen from a statement therein that detailed planning approval was expected to be obtained on 13 June 1996. The Employer's Requirements were expressed to be a summary of known constraints to assist tendering contractors to formulate proposals and submit a tender. The successful contractor was to enter into a contract under the JCT Standard Form of Building Contract with Contractor's Design 1981 edition. The architect to the development was to be novated to the contractor. Under "Base Scheme", it stated that the Employer's Requirements and the drawings and specifications contained therein represented the Base Scheme for the shape and form of the development and that the Contractor's Proposals, which the contractor was expected to submit, should as a minimum comprise the developer's Base Scheme. But it said that the contractor might provide optional design proposals additional to those presented as part of the Base Scheme. The design team was to report back to Gleeds any design variations proposed by the contractors, and Gleeds would advise as to their acceptability to Castle Wharf. The contractor was to be responsible for ensuring that the works at all stages met with all relevant statutory requirements and for obtaining all necessary approvals.
The drawings were the then latest set of drawings and some differed from the planning drawings. The Judge found that Jarvis received the actual design upon the basis of which permission was granted, but that it was not specifically identified and was accompanied by both preand postplanning permission sequential drawings. The basis upon which the subsequent drawings had been raised was not made clear. Included with the letter of 18 September was the list of the 22 potential savings and Jarvis was encouraged to identify further savings. The contractor was required to respond by 25 October 1996.
On 19 September 1996 a meeting between Castle Wharf, Franklin Ellis (but not Gleeds) and the planners was held. Amongst the planners present at the meeting was Mr. Lynch and a planning officer, Peter Smith. Mr. Smith's evidence (Day 7 pp....
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Spandeck Engineering (S) Pte Ltd v Defence Science & Technology Agency
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