Mouchel Ltd v Van Oord (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | THE HON. MR.JUSTICE RAMSEY |
| Judgment Date | 25 January 2011 |
| Neutral Citation | [2011] EWHC 72 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-07229 |
| Date | 25 January 2011 |
[2011] EWHC 72 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Hon. Mr.Justice Ramsey
Case No: HT-07229
Steven Walker (instructed by Beale and Company Solicitors LLP) for the Claimant
Jonathan Selby (instructed by Fladgate LLP) for the Defendant
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Hon. Mr. Justice Ramsey :
Introduction
In these proceedings the Claimant ("Mouchel") claims a contribution under the Civil Liability (Contribution) Act 1978 from the Defendant ("Van Oord") in respect of Mouchel's liability to Kier Construction Limited ("Kier") which was settled by a consent order.
Background
In about 1992 Humber Power Limited obtained permission for the construction of a combined cycle gas turbine power station at a site on the south bank of the Humber Estuary between Grimsby and Immingham which is referred to as the South Humber Power Station ("the Power Station").
Members of the ABB group of companies were engaged in various ways in constructing the Power Station. The relevant work for present purposes is the cooling water system, in particular the offshore part of the cooling water system. These offshore works included separate intake and outfall culverts which terminated in the intake head and the outfall respectively. The intake head was further offshore from the outfall.
In February 1994 ABB Power Plants Limited ("ABB") invited tenders for the design and construction of the onshore and offshore works for the cooling water system from a number of contractors, including Kier.
After discussions Kier decided that the offshore works for the cooling water system would be carried out by using an immersed tube method which involved dredging a trench, laying sections of the culvert on a bedding in the trench, placing "locking" fill at the side of the culvert and then backfilling the trench and protecting the areas around the intake head and outfall with scour protection to prevent erosion.
Kier tendered for these works to ABB on 25 April 1994. That tender was based on discussions which had taken place with Van Oord and Mouchel pre-tender and on tenders provided by Van Oord for the dredging and backfilling works and by Mouchel for certain design work. The tender provided by Van Oord included backfilling the trench with sand dredged from an area of the estuary known as "Grimsby Middle" and which was referred to as Grimsby Middle Sand ("GMS"). It also included protecting the areas around the intake head and outfall with a layer of rock as scour protection.
There followed a period of tender discussion between Kier and ABB involving questions being posed by ABB and answered by Kier with assistance from Mouchel, in particular questions about the suitability of GMS.
Kier's tender was accepted by ABB on 26 September 1994 in a sum of about £30.4m. Kier was responsible under that contract for, among other things, the design and construction of the offshore works.
Kier entered into a sub-contract with Mouchel on 15 February 1995 for Mouchel to provide certain design services in relation to the offshore works. Kier also entered into the sub-contract with Van Oord on 21 February 1995 to carry out offshore works, including excavating the trench using a dredger and then backfilling of the trench and placing scour protection.
Mouchel began to perform their design works which included the design of the scour protection around the intake and outfall heads.
After the immersed tube units had been installed, Van Oord commenced backfilling the trench in October 1995. By December 1995 it had become apparent that scouring or erosion of the backfill had occurred and that there was scour around the intake heads. Remedial backfilling around the intakes and outfall was undertaken in January 1996 immediately before the rock scour protection was placed by Van Oord. On 15 January 1996 Van Oord wrote to Kier to say that they had completed the scour protection which had been approved.
A survey was carried out on about 12 January 1996 after the last rock dumping at the intake heads. The report was noted as being handed to Kier on 16 January 1996. That showed that adjacent to the intake heads the depth of material above the tunnel top varied from 1.045metres to 1.445m based on the distances measured from the underside of the intake heads to the top of the surface of the material and using a figure of 3.845m from the underside of the intake heads to the top of the tunnel. This was less than the required depth of 2 metres cover but it does not indicate whether those depths of material were made up of GMS backfill or the scour protection rock at those locations.
In early February 1996 divers undertook inspections of the outfall and intake heads. In relation to the intake heads they reported that the rock covered the entire bed around the structure but that the levels were shallower close to the intake heads where they said that the overhang had prevented rock filling beneath. The measurements showed depths of material above the tunnel top varying from 0.145m to 0.845m. This showed that there was neither the 2m overall cover of material to the top of the tunnel nor the required 0.5m depth of rock for the scour protection locally to the intake heads.
In mid March 1996 a survey of the trench showed that substantial amounts of fill were missing. Kier arranged for remedial works to be undertaken. The remedial works to the trench, excluding the existing scour protected areas, involved placing additional GMS and then installing a filter layer and a layer of rock armour.
In late April and early May 1996 a further survey was carried out which stated that the inlet heads were surrounded by rock to similar levels to the previous survey in February 1996 and that, except at one location, the bed was completely covered in rock around the towers. The exception was a scour hole on the upriver side of the inshore inlet head where the rock had been removed and sand was now filling the bottom of the hole. In June 1996 Kier also decided that remedial work to the existing scour protection around the intake structures was required comprising the placing of a filter layer and rock adjacent to each intake head.
These Proceedings
On 19 July 2007 Kier commenced proceedings against Mouchel alleging that Mouchel had been negligent in the provision of the design services and that this had led to Kier having to spend sums in carrying out those remedial works. Mouchel subsequently issued a Part 20 claim against Van Oord alleging that Van Oord were liable to Kier in relation to the supply of unsuitable backfill material and defective installation of scour protection.
The main action and Part 20 claim were due to be heard together. Following a mediation, Kier and Mouchel settled the main action in February 2009 on terms that Mouchel pay the sum of £517,500 to Kier inclusive of interest and costs.
In these proceedings Mouchel now seek a contribution from Van Oord based upon that settlement.
Evidence
Mouchel called evidence from three factual witnesses. Their first witness was Michael Lohn who is now retired but was a civil engineer running Mouchel's Ports and Marine Group from 1984. From early 1994 he was involved in the Power Station project as a director but did not have day to day responsibility. His recollection of events was poor, to the extent that he did have any knowledge at the time. The second witness was Barry Johnson who is now chief engineer of Kier Engineering Services who was involved in discussions between Kier and Van Oord and Mouchel in the period February to July 1994. The third witness was Graham Dalton who is a civil engineer and was involved as Mouchel's project manager for the Power Station project from September 1994 until May 1995, responsible to Michael Lohn.
Van Oord called evidence from David Smart who was the managing director of Van Oord from 1988 to 1998 and was involved in the Power Station Project at all stages.
I was provided with witness statements of Tom Tagg, Gavin Barratt and Neil Pates of Kier and also Howard Simpson, Timothy Sharp and David Binns of Mouchel. The parties agreed, with the exception of paragraph 13 in the statement of Mr Pates, that I should admit them as hearsay evidence. Whilst I have done so and have read them, I have only had to refer to them to the very limited extent to which either party has relied upon them. In relation to paragraph 13 of Mr Pates' evidence where he deals with the question of Mouchel's role in relation to Grimsby Middle Sand, I have taken account of what Mr Pates says but have had regard to all the evidence.
In addition, Mouchel served during the course of the hearing a witness statement from Heidi Kapadia, a solicitor at Beale & Co which contained evidence as to the total sum of legal costs which Mouchel had expended in their action against Kier prior to the settlement in February 2009. By that stage Mouchel had not provided Van Oord with any detailed information on those costs and it was evident that the court could not deal with the quantum of those costs. As I indicated at the start of the proceedings I proposed that the best way of dealing with this element of Mouchel's claim would be for me to deal with any liability to make contribution and then consider contribution as to costs. If the quantum of costs could not be agreed, the quantum of such costs would probably have to be the subject of a detailed assessment. I therefore gave leave for Ms...
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