Northumbrian Water Ltd v Sir Robert McAlpine Ltd
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 12 July 2013 |
| Neutral Citation | [2013] EWHC 1940 (TCC) |
| Docket Number | Case No: 0 NE 90065 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 12 July 2013 |
[2013] EWHC 1940 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
TECHNOLOGY AND CONSTRUCTION COURT
Newcastle Combined Court Centre
The Quayside
Newcastle NE1
His Honour Judge Behrens
Sitting as a Judge of the High Court in Leeds
Case No: 0 NE 90065
Andrew Singer (instructed by Paul Kelly) for the Claimant
Jonathan Mitchell (instructed by DLA Piper UK LLP) for the Defendant
Hearing dates: 17, 18 19 June 2013
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 Claimant ("NWL") is the statutory sewerage undertaker operating in the North- East of England appointed by the Secretary of State pursuant to his powers contained in the Water Industry Act 1991. There is a public sewer operated by NWL passing under Newgate Street, Newcastle upon Tyne.
The Defendant ("SRM") is a well known Company in the construction industry. In January 2008 SRM was developing a construction site known as and situate at Eldon Square Phase 3, Newcastle Upon Tyne. The development site was on the east side of Newgate Street and close to premises known as 117 Newgate Street, Newcastle Upon Tyne on the west side which was occupied by the Co-Operative Group ("the Co-op")
On 23 rd January 2008 May Gurney, the piling subcontractor of SRM, carried out piling works and in doing so poured concrete in order to create pile 215. It is not in dispute that some of the concrete that was poured escaped and that a second attempt was made later that day when approximately 25% more concrete was poured.
Unbeknown to NWL and SRM there was a private drain at a depth of approximately 3.18–3.7 metres deep in the vicinity of pile 215. The existence of this private drain was not discovered until 6 th March 2008 when Mr Roche, an employee of SRM, carried out some research in the archives of the Discovery Museum, Newcastle and came across a 1908 plan. That drawing shows that there were two private drains connecting to the Newgate Street sewer, one from the east and one from the west. The eastern drain comprised a 12" pipe and followed a horseshoe route around what was then Hare Court. It is not in dispute that pile 215 is in the vicinity of part of this drain. The western drain comprised a 9" pipe. Its route is a straight line just to the south of what was then Chamber's Court, which, as I understand it is underneath the Co-op's premises.
At about the end of January 2008 representatives of the Co-Operative Group contacted NWL to advise that sewage was backing up into its premises. NWL's investigations revealed that concrete had entered its public sewer in Newgate Street. Subsequently NWL carried out works to the public sewer to remove the concrete. The works were completed in May 2009 at a cost of £318,032.
In these proceedings NWL seeks to recover the £318,032 from SRM. It asserts that that the concrete which was later discovered to have been deposited in the Newgate Street sewer had entered from SRM's site having been poured into the voids on the site on 23 rd January 2008 by its subcontractor May Gurney. It relies on nuisance and negligence.
SRM denies liability. It does not accept that the concrete discovered in the Newgate Street sewer was the same concrete as was poured on 23 rd and 24 th January 2008. Even if it was the same concrete the allegations of negligence and nuisance are denied. SRM submits that prior to commencing the development it carried out extensive research (including the diversion of a sewer) so as to discover and avoid damaging any of the public services in the vicinity. The existence of the private drain was unknown to both NWL and SRM and could not have been discovered by reasonable diligence. Even if it had been discovered it is by no means clear that it would have made any difference. The site was originally developed in the 1970's and SRM assumed and was entitled to assume that any connections below a depth of 2 m would have been removed during the course of that development. It is further alleged that NWL failed to mitigate its loss. It is suggested that NWL should have acted more quickly. If it had done so the concrete could have been removed before it had cured. In the Defence SRM alleged NWL was itself negligent in failing to provide any information to SRM which could or should have put SRM on notice that there was a possibility of concrete entering the Newgate Street sewer. However this allegation was not pursued in Mr Mitchell's closing submissions and I need not refer to it further.
These proceedings were issued on 10 February 2011. The pleadings were complete by 25 July 2011. The matter was transferred to the TCC on 25 January 2012 and detailed directions were given including the provision for single joint experts in materials testing and in respect of quantum. The order envisaged that the report from the material expert be available by May 2012. There were delays in obtaining this report. On 3 August 2012 HH Judge Walton revised the timetable and made provision for the trial to take place on 12 December 2012. As a result of further delays in obtaining the report on 26 October 2012 HH Judge Langan QC vacated the trial and relisted it for the first available date after May 2013. The report did not become available until 16 April 2013. On 17 April 2013 I refused an adjournment but agreed to remove the issue of quantum from the matters to be determined at the trial. SRM was late in filing its witness statements. In the result there were two applications before Judge Walton in the week before the trial. The first was an application by SRM for an adjournment. The second was an application to debar SRM from defending the claim. Each was refused. On the first morning of the trial SRM applied to amend its defence by adding three further allegations of failure to mitigate. For reasons I then gave and do not now repeat the applications were refused. In my view to have allowed them would have given rise to an adjournment. I also disallowed one of the witness statements on behalf of SRM on the ground that it was a thinly disguised attempt to adduce additional expert evidence at the last moment without permission.
Thus the trial duly commenced on 17 June 2013. Seven witnesses of fact were called on behalf of NWL — Beatrice Brindley, Aden Young, Keith Moreland, Mark Johnson, Stanley Richardson, David Ewles and Christopher Abbott. Three witnesses were called on behalf of SRM — Gary Hills, Neil Roche and Roger Wilkins.
The single joint expert, Dr Rachel Hardie produced a helpful report dated 16 th April 2013 in which she expressed a view (based on assumptions which are recorded in the report). She revised that view in the light of Mr Abbott's witness statement in replies to questions from NWL's advisors. She attended and was cross-examined by both parties.
The facts
2.1 The development
The Eldon Square Project related to the redevelopment of Eldon Square Shopping Centre. The redevelopment work started in 2005 and was completed in 2010. The total cost of the development was in the region of £170 million.
The project was phased consisting of enabling works and three phases. Scheme 1 involved the construction of a new bus station, the removal of an old bus station, the construction of pedestrian links and 22,000 sq ft of new retail space. Scheme 2 involved the redevelopment of retail units on the east side of Blackett Bridge fronting old Eldon Square, creating 14 new shopping units comprising 48,000 sq ft of retail space. Scheme 3 was the largest phase of the redevelopment works, creating 410,000 sq ft of retail space. The works involved the demolition and redevelopment of the southern end of the centre to create a substantial new retail area.
The preparation, planning and site investigation involved on the project was extensive. This included discussions with the utility companies and a ground survey.
Before the Scheme 3 works commenced existing structures had to be demolished. It was necessary to identify all the existing services within the site. In order to identify services it was, on occasions necessary to undertake CAT scans, and to use slit trenches and trial pits. As part of the work it was necessary to divert part of the Newgate Street sewer. There were direct discussions between NWL and Cundalls (members of the preconstruction design team). None of the investigations or discussions with NWL revealed the existence of the connections shown on the 1908 plan.
On the other hand all of NWL's plans contain a warning on them which points out that private connections are not shown but their presence should be anticipated.
2.2 The Piling Works.
The May Gurney pile record sheets show that 11 piles were drilled and poured on 23 January 2008. In each case the pile diameter was 750 mm and the drilling was to a depth of 17.8m. Pile 215 was the 8 th pile to be drilled. It was drilled twice. On the first occasion it was drilled to a depth of 17.8 m and 8.84 cu.m of concrete was poured. On the second occasion it was drilled to a depth of 4.5m and a further 2.32 cu m was poured. Pile 215 was the only pile to be redrilled. In respect of the other 10 piles between 8.65 and 9.94 cu m of concrete were poured. There is a strong inference that pile 215 was redrilled because approximately 2.3 cu m had not been retained within the drilled area and had seeped away. This inference was corroborated by the evidence of Aden Young a jet cut operator employed by Kilbride Industrial Services who were employed to remove the concrete. In paragraph 3 of his witness statement he recalls a conversation...
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