JDM Accord Ltd v Secretary of State for the Environment, Food and Rural Affairs

Action

Dates of Hearing: 29 & 30 April, 1, 6, 7, 8, 12 & 13 May 2003, 16 January 2004

Date of Handing Down of Judgment: 16 December 2003

This judgment was made in writing and was handed down by the court. For the purposes of paragraph 5.12 of 52PD-19 (Practice Direction —Appeals), this written judgment is to be taken as replacing an official recording and approved transcript of the judgment.

Index

Summary of Findings in Judgment

Summary of Findings in Judgment

Contract Issues

Travelling Time

1. Meaning of "Base" in Annex B of the Contract

The meaning of "base" in the phrase "to and forth from base" where the word is used for the first time in annex B to the contract means "the base from which the operative is working on the day in question". That might be his home base or it might be a temporary base if he is working away from his home base.

"Base" means "home or permanent base" where the word is used for the second time in annex B to the contract.

2. Travelling Time —Meaning

Where an operative was accommodated away from home in Bed & Breakfast accommodation, JDM can claim the cost of accommodation up to a maximum sum of £51 per night and, in addition, the travelling time involved in travelling back and forth from that accommodation to site.

Travelling time from accommodation to site includes any time travelling to a depot or to a pick up point and the additional travelling time back and forth from that depot or pick up point.

3. Alternative Basis for Recovering Travelling Time —Variation to Contract

If, contrary to the findings as to the meaning and intent of the contract provisions concerned with travelling time, JDM is not entitled to recover travelling time between operatives' overnight accommodation and site, an entitlement to the same recovery arises pursuant to JDM's entitlement to reasonable additional remuneration for services that had to be performed pursuant to the variations to, and the enlargement of the scope of, the contract which DEFRA instructed. These additional services were only provided as a direct consequence of those variations and for which JDM would not otherwise be remunerated.

The variations consisted of the provision of a greatly increased number of operatives to enable the hugely increased scope of work to be undertaken by JDM under the contract. This unexpected additional labour requirement arose from the unexpected size and scope of the foot and mouth outbreak which had led to the need to call in large numbers of operatives from far afield to match DEFRA's demands for labour. This labour was need both to clean up over a short space of time the greatly increased number of farms scattered over a much wider area than was envisaged by the scope of the call-off contract and to construct burial sites which was work which was not covered at all by the scope of that contact. This demand in turn required the use of much accommodation located far from the sites that were being worked on and a consequent unexpectedly lengthy daily journeys between their overnight accommodation and site for many operatives. In agreeing to instructing JDM to vary the contract to deal with these varied working conditions, DEFRA impliedly agreed to pay JDM additional reasonable remuneration for any services performed to fulfil those variations which were not covered by the existing contract remuneration. Such additional services included operatives' travelling time between their overnight accommodation and site and such travelling time is therefore reasonably to be paid for by DEFRA at the same rate as comparable travelling time between base and site already being paid under the contract.

This is an alternative basis for JDM to recover payment for travelling time between operatives' overnight accommodation and site. JDM may claim that time as a direct consequence of the variations to the contract that they agreed to perform.

Waiting Time

Both periods of waiting time, namely the period between arrival at and departure from the depot in the morning and evening and any waiting period incurred by members of rapid response teams counts towards chargeable hours.

Meal Breaks

1 Summary of Contract Provisions for Meal Breaks

A summary of the contract provisions for operatives' meal breaks is as follows:

JDM would provide its operatives with a break during the working day of a kind which would enable it to comply with Regulation 12 of the Working Time Regulations. That break would be for a minimum period of 20 minutes and for a maximum period of 60 minutes. However, the customary period in the civil engineering industry is 30 minutes.

The precise length of the break would be decided on site. In the absence of a formal decision or direction from DEFRA site based staff, the industry custom of taking a 30 minute break would prevail.

The Working Time Regulations were not applicable to JDM's work. However, a break would only occur if it was taken in a way and in a location which allowed an operative to rest and to be isolated from his working environment. Walking time to and from that location did not count towards the timed length of this break.

For the timed period whilst on a break, JDM would not charge DEFRA for that operative's time. If no break was in fact taken, or one of less than 30 minutes was taken, no deduction would be made or the actual period of the break would be deducted.

If a break was taken and the precise length of the break was not ascertained, it would be assumed that the deductible period was 30 minutes unless evidence to the contrary was available.

2. Plant Operators' Meal Breaks

Plant operators' time was deductible whilst they were engaged in their main meal break in the same way as other operatives.

Plant which came with an operator was not chargeable to DEFRA during its associated operator's deductible meal break for the identical period that was deducted for the operator but was chargeable during any associated operator walking time. However, if no deductible operator time occurred, no deduction would be made for associated plant hire.

If the parties had agreed in advance to a plant standing time or plant hire charge regime during operators' meal or walking times, that agreement would prevail over the contractual provisions summarised in subparagraphs 1 —2 above.

Nature of Payments Made to JDM by DEFRA

No payment that was made was final in nature and any overpayment which can now be shown to have been made in error may be claimed by DEFRA as part of the overall accounting exercise being carried out now work has been completed.

May DEFRA Challenge the Record of Chargeable Hours Recorded on Time Sheets?

It would be to allow DEFRA to take advantage of its breach of contract if DEFRA was to be allowed to make any more extensive challenge to the time sheets than it could have done following their verification by one of its site based representatives. Thus, for any time sheets now in issue which had not been verified by DEFRA on site, DEFRA now has the evidential burden of showing that the contents of the time sheet were inaccurate. In practical terms, therefore, DEFRA is restricted in its attack on the time sheets to showing that they contain arithmetical or other patent errors, that they are subject to some general error such as not allowing for deductible meal breaks, were fraudulently produced or were produced by a process which was inherently unreliable such that no weight may be placed upon them.

Estoppel

I will consider the potential application of the estoppels contended for by JDM when I consider the particular sites at which JDM contends that they arise.

These principles must be applied on a case by case basis. Thus, it is not possible to apply them generally to this case but the particular facts relating to each site must be considered separately. Suppose it had been agreed by appropriate representatives of DEFRA and JDM that travelling times should be traded off against meal times so as to enable both parties to save themselves much paperwork and administrative time. Alternatively, suppose DEFRA first challenged the accuracy of particular time sheets so long after their submission by JDM that JDM was no longer able to substantiate them because it had reasonably disposed of relevant documents or had lost track of particular witnesses. In such circumstances, for the site in question, JDM could in principle estop DEFRA from relying on its contractual entitlement...