The Board of Trustees of National Museums and Galleries on Merseyside v Aew Architects and Designers Ltd Pihl Uk Ltd and Galliford Try Construction Ltd (trading together in partnership as a Joint venture "Pihl Galliford Try Jv) (Third Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Akenhead |
| Judgment Date | 31 July 2013 |
| Neutral Citation | [2013] EWHC 2403 (TCC) |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Docket Number | Case No: HT-11374 |
| Date | 31 July 2013 |
[2013] EWHC 2403 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Akenhead
Case No: HT-11374
and
Sean Brannigan QC (instructed by DWF LLP) for the Claimant
Paul Reed QC & Brenna Conroy (instructed by Plexus Law) for the Defendant
Jonathan Lee (instructed by Pinsent Masons LLP) for the Third Party
Hearing dates: 22–25, 29–30 April, 1–2, 7–9 May and 10 June 2013
Introduction
This judgment relates to all aspects of liability and contribution and to quantum in relation to the steps and seats claim. A further judgment will follow which will deal with quantum relating to the ceilings claims.
These proceedings related to the new Museum of Liverpool constructed between about 2007 and 2011, it being open to the public in July 2011. It has a dramatic and interesting design with sweeping roofs clad in aluminium and with what might be described as half amphitheatres comprising concrete steps and seats at the north and south end. Internally, there are four levels with two types of suspended ceilings, "SAS" and "Armstrong" ceilings. The building is located beside the Mersey between the Albert Dock and what are called in Liverpool the "Three Graces", namely the Royal Liver, Cunard and Port of Liverpool buildings, which many think grace the skyline of the western edge of the city. The Museum is broadly a history and cultural museum which exhibits historical artefacts and objects which relates to Liverpool. One of the prize exhibits is a pair of dark glasses worn by John Lennon of the Beatles. It attracts hundreds of thousands of visitors a year.
There are essentially three areas of complaint: the steps and terraces and the SAS and Armstrong ceilings. There were collapses of the SAS ceilings in mid-2011 and the Armstrong ceilings have been inadequately installed. The steps, seats and terraces have suffered from overall design problems and decisions which resulted in the works being suspended from about January 2010 to the opening of the building, with the undoubted problems still not being remedied.
The claim is by the Claimant (whom I will call "the Museum") against its architect, AEW Architects and Designers Ltd ("AEW"). Certain aspects of liability were admitted very shortly before the trial by Counsel on behalf of AEW. As for the remaining aspects of liability, there have been no further admissions of liability by AEW notwithstanding important concessions made by its own architect expert when giving evidence. AEW has brought in as a third party PIHL Galliford Try JV ("the Contractor"), which was retained by the Museum to carry out the construction works together with certain elements of the design.
I made clear on the first day of the trial that I was very surprised that the case had not resolved itself in the light of the admissions of liability made by AEW. I even asked all three Counsel what the Court could do to facilitate settlement. Notwithstanding this and in spite of the further concessions made by AEW's architect expert, there remain live issues of liability and limited agreement between the parties as to 50 main heads of quantum. This was all the more surprising because the Claimant took the unusual step of making an open offer on the fifth day of the trial in relation to each and every head of claim and specifically invited responses; no clear responses were provided. I was informed by solicitors for AEW following the final speeches that "meaningful settlement discussions" were proceeding between the parties but I have more recently been informed that, although AEW and the Contractor consider that such discussions are continuing, the Museum does not. I have therefore resolved to produce the judgment. Of course, the Court cannot be and is not privy to what has been happening on a privileged basis between the parties but I am disappointed that there has not been a resolution of the case by the parties.
A Brief Description of the Elements of Work in Issue
The Steps, Seats and Terraces, which I have described as half amphitheatres, provided an external link between the pavement level and the first floor level of the building, albeit that the main access is at ground floor level. If looked at from the pavement level what one sees are steps going up on the right with two sets of handrails obviously for people to walk up and down. To the left going up, there is a continuation of the steps until they reach a junction or valley where they are intended to connect to seats which come in at an angle from the left. The stairs are interspersed at two levels by wider terraces, presumably so people can walk along them. At the top of the stairs, there is a slab terrace which leads to one of the entrances to the main building. A primary issue in the case relates to the junction between the steps and the seats. As eventually designed and constructed, the steps and seats are constructed in white acid etched finished precast concrete. The steps are pitched at 19.5° and the seats at 26°, approximately. The steps have a 410 mm tread and 150 mm rise whilst the seats are 620 mm wide and 300 mm as a rise. This asymmetry in the intersection or valley meant that a variation in dimension on one slope would have a different effect on the abutting slope. It should have come as no surprise to the designers that special arrangements at least had to be made at the valley or junction.
The steps and seats are supported from below by structural steel onto which were laid precast concrete planks laid in a series of slopes and flat areas above which were placed concrete ribs going from top to bottom over which was placed a single layer pvc waterproofing membrane. On top of these, the precast concrete steps and seats were located. There were various mechanical measures taken to prevent the steps and seats sliding down the slopes. A comparable arrangement was made for the upper terrace with block upstands being placed on precast concrete beams overlying steelwork with the block upstands and the remainder of the terrace covered with membrane on top of which paving type slabs were placed. The drainage of rainwater was clearly intended to be through gaps between the various slabs and step and seat components through to the level of the eventually concealed waterproofing membrane.
The SAS ceilings were installed mostly on slopes. They were suspended ceilings, that is suspended from the underside of the floor or roof above and they were supported by what is called ERCO lighting track. These tracks comprise metal angles which include at the bottom clips which hold the suspended ceiling panels in. The Armstrong ceilings were used in the main circulation areas and in peripheral gallery areas of the Museum and they are supported off a grid which is attached to the roof or ceiling above; the ceiling panels are supported off inverted T bars which themselves are not fixed to the grid and also off the ERCO lighting track.
The General Chronology
In or about 2005 or 2006, the Museum retained a number of different professionals (project manager, structural, civil and mechanical and electrical engineers, architects and cost consultants). The architect was originally a Danish firm 3X Nielsen A/S which sub-contracted most of the architectural work to AEW. The engineers were Buro Happold. Between them, the various consultants produced various designs and specifications. Tenders were sought from contractors in about March 2007 and the Contractor (in this case) was duly appointed, the Contract Sum being £41 million. Work started in the spring of 2007. An IT protocol was agreed between the consultants whereby documents, such as designs and instructions could be assessed and checked and approved.
By June 2007 AEW took on the role of Contract Administrator and was clearly closely involved with most of the design decisions as well as the administration and running of the construction contract. In particular Mr Hiscocks was involved. AEW was intimately involved with the production of design drawings from early 2007.
By about October 2007 the Danish architects dropped out and AEW was engaged directly by the Museum as architect. The formal deed of appointment was actually dated 5 November 2008 and contained warranties that reasonable skill, care and diligence had been and would be exercised. I will refer to this in detail later. As well as its own design responsibilities, AEW undertook the lead and coordination role in relation to all the other design team members such as the engineer. AEW also undertook an inspection role.
There were regular meetings involving the professional team as well as members of the Museum staff. There was a Change Control Procedure in place and there were over 100 Change Control Meetings. This Procedure involves a detailed process by which each change needed to be approved. It was instituted for a number of reasons, not least of which was cost control but also the involvement of the Museum senior staff to ensure that they approved the changes from an aesthetic as well as from an operational standpoint. There were also Design Team meetings attended by the professional team members as well as by Museum staff as required. In addition, there were monthly Principals meetings attended by the Contractor, the professional team and by senior representatives of the Museum. There were also Project Team meetings. Sharon Granville was the Executive Director of the Museum and she had a detailed involvement at all...
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