Northern Ireland Housing Executive v Healthy Buildings (Ireland) Limited
| Jurisdiction | Northern Ireland |
| Judge | Girvan LJ |
| Judgment Date | 2014 |
| Neutral Citation | [2014] NICA 27 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 13 February 2014 |
1
Neutral Citation No. [2014] NICA 27 Ref: GIR9150
Judgment: approved by the Court for handing down Delivered: 13/02/2014
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL FOR NORTHERN IRELAND
_______
ON APPEAL FROM THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
QUEEN’S BENCH DIVISION (COMMERCIAL)
________
BETWEEN
NORTHERN IRELAND HOUSING EXECUTIVE
Plaintiff;
-and-
HEALTHY BUILDINGS (IRELAND) LIMITED
Defendant.
_________
Before: Morgan LCJ, Girvan LJ and Coghlin LJ
________
GIRVAN LJ (delivering the judgment of the court
Introduction
[1] This is an appeal brought by the plaintiff/appellant (“the Executive”) against
the judgment of Weatherup J who dismissed the Executive’s claim for a declaration
that the decision of an adjudicator on 14 August 2003 was wrong in law. The
proceedings relate to a dispute arising out of a contract made between the Executive
and the defendant/respondent (“HBL”) relating to the provision of asbestos
surveying services in relation to certain properties belonging to the Executive.
[2] Mr Darling QC appeared with Mr Singer on behalf of the Executive.
Mr Humphreys QC appeared with Mr Atchison on behalf of HBL. The court is
indebted to counsel for their helpful written and oral submissions.
2
[3] Essentially two questions arise for consideration. Firstly, did the Executive as
employer under the contract issue an instruction changing the scope of the services
to be provided under the contract giving rise to a compensation event? Secondly, if
so, is HBL time barred in relation to its claim for compensation arising out of that
instruction? The first question requires a careful analysis of the contractual
documentation to ascertain the scope of the services. The second question
necessitates a construction of the contractual terms.
The contractual context
[4] The Executive is a housing authority with a large number of tenants in
domestic dwellings. As a landowner and employer it is obliged to manage the risks
posed by the presence or potential presence of asbestos bearing material in its
properties. HBL is a risk management company which provides asbestos
management services including asbestos surveys and sampling services to check for
the presence of asbestos in premises.
[5] Following the submission of tenders in relation to asbestos management
schemes involving different regions, on 20 December 2012 the Executive wrote to
HBL indicating that the Executive accepted HBL’s tenderers as contained in their
pricing schedules. These related to two areas. The first related to Belfast where the
contract sum was specified as £590,457.50 and the other was the north east region
where the contract price was £530,712.50. The date of commencement of the
contracts was expressed to be the date of the letter and the letter stated that there
was now a binding contract between the parties. Until the execution of the formal
contractual agreement a contract existed between the parties and was subject to the
tender documentation, the Specification, HBL’s schedule of prices and its Quality
Submission. The formal contract document was signed by HBL on 16 January 2013
but was not signed by the Executive until 6 March 2013. It is common case that the
parties were in contract at all relevant times and that the standard form of New
Engineering Contract, 3rd Edition (Professional Services Contract) (‘NEC3’)
constituted the contractual terms. Since the issues raised in the present appeal
require a consideration of the terms of the contractual arrangements between the
parties we set out below some of the key provisions.
The Specification
[6] Under Clause ACC.101 of the Specification entitled “Management Survey
with Sampling” it was provided that the asbestos consultant surveyor (“ACS”) was
to complete the survey generally in accordance with Health and Safety Guidance.
This was a reference to the guide HSG264 (“HSG264”). Under Clauses ACC.101.1 of
the Specification the Employer’s Officer was to commission surveys and provide
information such as the address of relevant properties and data relating to, for
example, the year of construction of the premises and the number of bedrooms.
Under Clause ACC.101.2 the ACS was to visit “each property and carry out
management surveys with samples as described in Task Order (Commission)”. All
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1 cases
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Northern Ireland Housing Executive v Healthy Buildings (Ireland) Limited
...decision and the plaintiff then appealed again. It failed on that appeal: Northern Ireland Housing Executive v Healthy Buildings Limited [2014] NICA 27. [5] Both parties are entitled by the contract to challenge the adjudicator’s decision although the plaintiff was obliged to pay the defend......
2 firm's commentaries
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Compensation Events Under NEC3
...the decision of the Northern Ireland Court of Appeal in Northern Ireland Housing Executive v Healthy Buildings (Ireland) Limited [2014] NICA 27. Healthy Buildings was engaged by the Housing Executive under a NEC3 PSC to provide asbestos management services at housing association properties.......
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Good Faith In NEC
...two cases, in which he served as counsel, that discuss the implied obligation of good faith in NEC contracts. The case of NIHE v HBE [2014] NICA 27 concerned an appeal brought by the Northern Ireland Housing Executive ("Executive") relating to a dispute that arose out of the provision of as......