Radius Housing Association Limited (Formerly Helm Housing Limited) (Formerly BIH Housing Association) v JNP Architects, Michael Jennings and Brian Murphy of BDO NI, Albert Fry Associates Limited, David Rea T/A A G Crawford and Co
| Jurisdiction | Northern Ireland |
| Judge | Horner J |
| Judgment Date | 04 July 2018 |
| Neutral Citation | [2018] NIQB 57 |
| Court | Queen's Bench Division (Northern Ireland) |
| Date | 04 July 2018 |
1
Neutral Citation No: [2018] NIQB 57
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: HOR10510
Delivered: 4/7/2018
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
_________
QUEEN’S BENCH DIVISION
_________
2015 No. 22837
BETWEEN:
RADIUS HOUSING ASSOCIATION LIMITED (FORMERLY HELM HOUSING
ASSOCIATION LIMITED) (FORMERLY BIH HOUSING ASSOCIATION
LIMITED)
Plaintiff;
-and-
(1) JNP ARCHITECTS
(2) MICHAEL JENNINGS AND BRIAN MURPHY OF BDO NORTHERN
IRELAND AS JOINT ADMINISTRATORS OVER T & A KERNOGHAN
(GROUP) LIMITED
(3) ALBERT FRY ASSOCIATES LIMITED
(4) DAVID REA T/A A G CRAWFORD AND CO
Defendants.
__________
HORNER J
A. INTRODUCTION
[1] Radius Housing Association Limited (“Radius”) is the plaintiff. It was
formerly known as Helm Housing Association Limited and before that BIH Housing
Association Limited. Radius has asked this court to try the issue of liability only
arising out of the construction of two apartment blocks at Newtownards. Both these
apartment blocks suffer from serious damp penetration.
2
[2] Originally proceedings were issued against JNP Architects (“the Architects”),
T & A Kernoghan (Group) Limited (“the Builder”), Albert Fry Associates Limited
(“the Engineers”) and David Rea t/a A G Crawford and Co (“the QS”).
However the claims against both the QS and the Engineers were not pursued. The
Builder is in administration. Its solicitors have come off record. I understand that it
has no assets. This has left Radius to pursue its claims against the Architects alone in
respect of the water ingress and its effects on the two blocks of apartments. The
Architects in their defence have relied, inter alia, upon a Net Contribution Clause
(“NCC”) contained in their contract with Radius. Such a clause, if effective, converts
what would normally be a joint and several liability into a several liability only.
Thus instead of the Architects being liable 100% if they were jointly to blame with
the Builder, under the NCC they become responsible only for their share of the
blame. In a contract with an NCC the employer “cannot recover more than the
percentage contribution which would be found against the Architect if the
Contractor and other consultants contributed in proportion to their fault:” see 2-033
of Hudson’s Building and Engineering Contracts (13th Edition). Both the Architects
and Radius agree that there is a NCC clause which is binding upon them in this
dispute. Where they differ is as to its effect.
[3] Therefore in these proceedings the court has been concerned with
determining two issues. Firstly, whether the Architects were guilty of a breach of
contract and/or negligence. Secondly, if so what was the Architects’ share of
responsibility, if any, for any of the defects and their effects on the two blocks of
apartments?
[4] I did agree that this trial would be confined to the issue of liability alone and
that I would hear the issue of quantum later. My provisional view was that should I
find that there should be a sharing of responsibility between the Architects and the
Builder in respect of the defects which affected two apartment blocks, it would be
necessary for me to hear the quantum evidence before I made any apportionment on
the basis of what was “just and equitable” in respect of the entire claim. Having
reviewed the evidence in detail, I am satisfied that this provisional view is the
correct one. To take one example, it is accepted that there has been a problem with
the balconies of some of the apartments. However I am in no position to reach any
conclusion as to how this problem contributed to the additional costs that are or will
be incurred. Therefore I cannot make a final apportionment on the basis of what is
just and equitable in respect of all the claims which are proven.
[5] Finally, I should congratulate both sides and their legal representatives on the
quality and extent of their submissions which have been made both orally and in
writing. They ranged far and wide. I have tried to set out as concisely as possible
the arguments made to me and the points which have been taken by each side. But
for the sake of brevity I have not obviously included everything. I have dealt with
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