Jarvis (J.) & Sons Ltd v Westminster Corporation

APPEAL from the Court of Appeal (Civil Division) (Davies, Salmon and Karminski L.JJ.).

This was an appeal brought pursuant to leave granted by the House of Lords on October 13, 1969, by the Westminster Corporation (“the employer”) from an order of the Court of Appeal dated July 11, 1969, allowing appeals by J. Jarvis & Sons Ltd. (“the contractor”) and Peter Lind & Co. Ltd. (“the nominated sub-contractor”) from an order of Donaldson J. given on June 17, 1968, whereby he answered in the negative the question:

“Whether [the contractor is] entitled to an extension of time for completion of the works required to be carried out at Rochester Row in the City of Westminster under a contract between [the employer] and [the contractor] in the R.I.B.A. standard form made on September 21, 1966, on account of delay caused by [the nominated sub-contractor].”

By an originating summons taken out by the contractor as plaintiff, joining the employer as first and the nominated sub-contractor as second defendants, the contractor sought determination of the above question. On an interlocutory application, it was ordered that there be no pleadings and that the trial be before the commercial judge. The parties exchanged contentions and agreed a statement of facts which was, so far as material, as follows.

1. By a contract in writing made on September 21, 1966 (hereinafter called “the main contract”), the contractor agreed to carry out and complete for the employer certain building works (hereinafter called “the contract works”) for the consideration set out in the main contract and subject to conditions therein referred to. The contract works consisted of a multi-storey car park with flats, offices, showrooms, petrol filling station and computer centre at Rochester Row, London S.W.1. 2. (a) The main contract incorporated the R.I.B.A. Conditions (Local Authorities Edition (with Quantities) 1963 ed.). The main contract, appended to the agreed statement of facts, provided that the contractor should be liable to the employer in the event of the contractor failing to complete the works by the agreed completion date for liquidated damages at the rate of £1,800 a week. By clause 23:

“Upon it becoming reasonably apparent that the progress of works is delayed, the contractor shall forthwith give written notice of the cause of the delay to the architect … and if in the opinion of the architect … the completion of the works is likely to be or has been delayed beyond the date for completion stated in the appendix to these conditions or beyond any extended time previously fixed under either this clause or clause 33 (1) (c) … (g) by delay on the part of nominated sub-contractors … which the contractor has taken all practicable steps to avoid or reduce … then the architect … shall … make … a fair and reasonable extension of time for completion of the works …”

By clause 27:

“The following provisions of this condition shall apply where prime cost sums are included in the contract bills, or arise as a result of architect's … instructions given in regard to the expenditure of provisional sums, in respect of persons to be nominated by the architect … to supply and fix materials or goods or to execute work … (d) … (ii) If any nominated sub-contractor fails to complete the sub-contract works or … any section thereof within the period specified in the sub-contract or within any extended time granted by the contractor with the written consent of the architect … then if the same ought reasonably so to have been completed the architect … shall certify in writing accordingly …”

Possession of the site was given to the contractors on December 6, 1965, and the main contract required the contractor to complete the contract works by January 15, 1968, subject to such extensions of time as the architect might make. The contractor had been granted extensions of time for causes other than the delay the subject-matter of these proceedings amounting to 14½ weeks. The contract works had not yet been completed. 3. The employer appointed Messrs. Howard V. Lobb and Partners as the architect and Messrs. Jan Bobrowski and Partners (hereinafter called “the engineer”) as consulting engineers. 4. The architect nominated the nominated sub-contractor to carry out certain piling work referred to in the bills of quantities. 5. The contract works commenced on December 6, 1965. 6. The nominated sub-contractor commenced the piling works on April 4, 1966. 7. On May 26, 1966, the engineer wrote to the contractor concerning a defect observed in the piling. 8. The nominated sub-contractor purported to complete the piling works by June 20, 1966, and removed [its] equipment and men by June 24, 1966. Further construction work on the site was then carried out by the contractor. 9. The date by which the nominated sub-contractor should have completed the piling work, that was, the end of the period specified in the piling sub-contract for the completion thereof as extended by the contractor with the consent of the architect, was June 20, 1966. 10. By letter dated July 20, 1966, the resident engineer drew the nominated sub-contractor's attention to the fact that the cut-off levels of the piles that had so far been exposed were too high. 11. On the morning of July 21, 1966, one of the contractor's excavating machines accidently nudged one of the exposed piles (No. 57) and the top part of it broke off. 12. Later on the morning of July 21, 1966, there was a meeting which began at the office of the contractor, which adjourned to the site after the representatives of the nominated sub-contractor had been informed of the matter referred to in paragraph 11 hereof. 13. A further meeting was held in the afternoon of July 21, 1966, in the conference room of the employer. No representatives of the nominated sub-contractor were present at this meeting. 14. The parties are unable to agree whether any and if any what instructions were given on July 21, 1966, in respect of the piles and how far if at all the work referred to in paragraphs 17 and 19 below was carried out in compliance with such instructions if any. 15. On July 22, 1966, evidence of a gap at high level in pile no. 57 was found. 16. A further meeting was held on July 27, 1966, at the contractor's site offices. Minutes of that meeting were prepared by the contractor and sent to the employer and the nominated sub-contractor. 17. Subsequent to the meetings referred to in paragraphs 12 and 13 the nominated sub-contractor drilled 74 piles and inspected them by lowering a television camera into the hole made by the drill. Of those 74 piles 65 were inspected by or on behalf of the architect or by the district surveyor the other nine not being inspected by the architect or the district surveyor because on the nominated sub-contractor's suggestion they were abandoned. Of the 65 piles drilled 18 were found to be defective. The defects were the result of bad workmanship or the use of bad materials on the part of the nominated sub-contractor. 18. (a) The architect was suspicious about the...