Mr Stuart Howard Russell v Peter Stone (Trading as PSP Consultants)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Jefford |
| Judgment Date | 05 April 2019 |
| Neutral Citation | [2019] EWHC 831 (TCC) |
| Docket Number | Case No: HT-2016-000329 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 05 April 2019 |
[2019] EWHC 831 (TCC)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURT OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (QBD)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Jefford DBE
Case No: HT-2016-000329
Jennifer Jones (instructed by Elborne Mitchell LLP) for the Claimants
Lynne McCafferty QC (instructed by Beale & Co. Solicitors LLP) for the Defendants
Hearing dates: 6–7 June, 11–14 June, 18–20 June, 4 July 2018
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.
Introduction
These proceedings arise out of the construction of the claimants' home in Hampstead, at 36 Millfield Lane. The house is an impressive residence with a curved shape built on a sloping site. Putting it neutrally, the project to build this house was beset with problems and there is no doubt that it took longer and cost more than the Russells expected or would have wished. Although other issues arise, at the heart of the dispute is the contention on the part of the claimants, the Russells, that, to a significant extent, the property cost them more to build than it ought to have done as a consequence of the negligence of the defendants, a firm of quantity surveyors whom they had engaged. As the Russells put it in opening submissions, they claim that by reason of its failure PSP caused them to spend significantly more on their property than they would have had to had the project management, contract administration and quantity surveying roles undertaken by the defendants been properly performed.
For the purposes of the trial, the parties agreed a list of issues which forms Annex 1 to this judgment. Both parties were, however, clear that the list of issues was intended to assist the court in focussing the issues and not to be a substitute for the pleaded cases which I will refer to in a number of instances, particularly where the case ultimately advanced had shifted.
The evidence generally
Although the dispute was concerned with events many years earlier, the trial of the action took place in June/July 2018 with written and oral closing submissions following the hearing of oral evidence. I heard evidence from the following:
(i) Stuart Russell
(ii) Naomi Russell
(iii) Peter Stone
(iv) Linda Stone
(v) Paul Greenwell, the claimants' expert witness on project management issues
(vi) David Somerset, the claimants' expert witness on quantity surveying [and contract administration issues]
(vii) Keith Strutt, the defendants' expert witness on project management issues
(viii) Kenneth Orr, the defendants' expert witness on quantity surveying issues.
The witnesses of fact
I regarded all of the witnesses as trying to do their best to give honest evidence.
Mr Russell is plainly a highly successful and experienced businessman. His area of expertise is commercial property. He has, however, no personal experience of, or particular knowledge of, construction contracts. He described himself as learning as he went along and emphasised that on this project, as in his business, if he engaged professionals to advise him, he took their advice. I entirely accept all of that but it is equally clear to me that Mr Russell, as an intelligent, commercial operator, was able to understand what was going on and to exercise a considerable degree of judgment of his own, and he described himself as someone who orchestrated other professionals. On this project, he challenged his professional advisers and did not meekly accept what they told him; he raised queries and pressed for answers; and he examined figures put before him rigorously. He sought to downplay his level of understanding and input to the project. He has, in my view, persuaded himself that what went wrong on this project was PSP's responsibility: downplaying his own role was then a natural product of his desire to blame PSP but it did not fairly reflect what had happened at the time.
Mr and Mrs Russell had only recently married when they bought 36 Millfield Lane. Although Mrs Russell did not accept the description, to call it their dream home is appropriate. It was a very personal project for them. Mrs Russell had a background in textile design and the house was an opportunity for her to bring her design “eye” to their home. She wanted a “wow factor” in each space. Mr Russell's regard for and pride in his wife was patent and his passion for this project reflected that. It did not, however, completely overwhelm his commercial instincts.
Mr Stone was an experienced quantity surveyor and presented himself as a straightforward witness. He was, to my mind, unwilling in cross-examination to accept some measured criticism but was otherwise open in his answers.
Mrs Russell and Mrs Stone (who was involved in the project throughout) were both in an unusual position in this case. Mrs Russell gave evidence about the background to and progress of the project but the evidence of both Mrs Russell and Mrs Stone was primarily related to an allegation made in the Defence that the claimants were responsible for problems on the project because of their failure to take design decisions promptly. That issue seems to me to have taken on a life of its own in this litigation and ultimately to have turned out to be largely a non-issue.
Mrs Russell was also doing her best, although she became somewhat overwrought when giving her evidence. I formed the view that, during the project, some of her expectations were unrealistic but that is of no particular relevance to the issues in this case.
The claimants fairly make no criticism of Mrs Stone's evidence other than to suggest that she had formed the view from the outset that the Russells were demanding clients; that she was determined to paint them as always in the wrong; and that that attitude went a long way to explain what had gone wrong on this project. That was not the view I formed of Mrs Stone or her evidence. I certainly did not gain the impression that she had somehow set her face against the Russells either during the project or now, although she fairly accepted that towards the end of 2011 the relationship between her and Mrs Russell was deteriorating. Her evidence was fair and balanced; she might have displayed some frustration with the Russells but no more than that. In any event, the suggestion made in the claimants' submissions that any adverse view of the Russells on Mrs Stone's (or Mr Stone's) part goes a long way to explain what went wrong on this project is fanciful and no foundation for any claim in negligence against PSP.
The experts
Mr Greenwell was called to give evidence on the project management role performed by PSP. In his report he gave his specialist expertise as construction project management for both building and civil engineering works. His evidence was unimpressive. As I consider further in this judgment, there were key elements of his evidence on which he based his criticism of PSP that were misconceived, and although his evidence was crucial to the allegations that PSP had negligently managed the tender process, he had not considered the entirety of the tender documentation and had paid little regard to the evidence of Mr Stone about PSP's performance. These matters, cumulatively, significantly undermined the confidence that I could have in his evidence. Further, in my view, in his oral evidence in particular, he gave lengthy answers that were based on hypothetical situations and bore little relationship to what had actually happened on this project. On behalf of PSP, Ms McCafferty QC submitted that Mr Greenwell adopted an approach which she variously described as unrealistic, technical and academic. Those adjectives are well chosen and it seemed to me that Mr Greenwell held PSP to the standard of the so-called counsel of perfection but failed to meet the same standard himself.
Mr Somerset is by qualification a quantity surveyor. PSP submits that the reliance I can place on his evidence is fundamentally undermined by the fact that Mr Somerset had omitted to disclose, in his report, the full extent of his relationship with the Russells. What emerged from his evidence was that for about 5 months from November 2013 to March 2014, he had acted as a “Client Representative” for the Russells. His evidence was that it was not a “formal” appointment and arose at a time when the Russells were having problems with the contractors, Cameron Black (whose role I address below). He had, therefore, to that extent been involved in the continuation and completion of the project after PSP's involvement had ceased and, however informal the role, he had invoiced for that work. That was obviously relevant and I can see no satisfactory explanation for his failure to mention this role in his report but rather declaring that he had no other relationship with the claimants (which was factually wrong). I do not, however, think that it would be fair or realistic to dismiss Mr Somerset's evidence simply on the basis that he lacked independence. He was still capable of expressing an independent view on the matters on which he was asked to opine. However, it does seem to me that it may have led Mr Somerset on occasion to try too hard to advance the claimants' case and I bear this in mind when assessing his evidence.
Keith Strutt was an impressive expert witness. He is qualified as a chartered construction manager, chartered quantity surveyor and chartered civil engineering surveyor. He had lengthy experience as a project manager on residential and commercial projects and...
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