The University of Manchester v John McAslan & Partners Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Roger Ter Haar,Mr Roger ter Haar |
| Judgment Date | 02 November 2022 |
| Neutral Citation | [2022] EWHC 2750 (TCC) |
| Docket Number | Case No: HT-2019-000396 |
| Court | Queen's Bench Division (Technology and Construction Court) |
and
[2022] EWHC 2750 (TCC)
Mr Roger ter Haar KC
Sitting as a Deputy High Court Judge
Case No: HT-2019-000396
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
TECHNOLOGY AND CONSTRUCTION COURT (KBD)
Royal Courts of Justice
Rolls Building
London, EC4A 1NL
Jessica Stephens KC (instructed by Clyde & Co LLP) for the Claimant
Mark Chennells KC and Nicholas Maciolek (instructed by DWF Law LLP) for the First Defendant
Rupert Choat KC and Arthur Graham-Dixon (instructed by CMS Cameron McKenna Nabarro Olswang LLP) for the Second Defendant
Charles Pimlott (instructed by Penningtons Manches Cooper LLP) for the Third Party
Hearing date: 6 October 2022
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Roger Ter Haar KC
This judgment was handed down by the judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be Wednesday 02 November 2022 at 10:30am.
Mr Roger ter Haar QC:
This matter came before me on 6 October 2022 for a Costs and Case Management Conference.
In the oral argument before me the time was almost entirely taken up with argument as to the conditions (if any) which should be attached to the permission to be granted to the Claimant to adduce expert evidence.
Because time ran out, it was agreed that I would deal with issues in respect of cost management and an issue as to disclosure on the papers.
This case had previously come before me on 10 October 2020 when there was a difference between the parties as to the adequacy of the particularisation of the Claimant's case. I handed down judgment on those matters on 25 November 2020 ( [2020] EWHC 3198 (TCC)).
Factual Background
These proceedings concern claims by the Claimant (“UoM”) against both the First Defendant (“JMP”) and the Second Defendant (“LOR”) for breaches of contract relating to the design and construction of a building project at the University of Manchester.
The project includes three large connected buildings, referred to as Blocks 1, 2 and 3. Block 3 is known as the Jean McFarlane Building and Blocks 1 and 2 as University Place.
The north ends of Blocks 2 and 3 are eight-storey service/circulation towers, housing lift and stair cores and plant. Block 1 is 6 storeys. Elsewhere, and more generally, the principal accommodation stands seven storeys above ground level.
Blocks 2 and 3 are broadly rectangular buildings, each approximately 32 metres by 44 metres on plan with brick-clad northern and southern elevations. Each have central full height zinc-clad bays dividing the brickwork façade in two and both have curtain walling at ground floor level. The eastern and western elevations are also brick-clad and are punctuated by a regular arrangement of storey-height inset windows.
Block 1 comprises a rectangular brick-clad service tower attached to the northern end of a zinc-clad drum-shaped building.
All three buildings are connected by curtain walling clad circulation links.
The northern elevations of the buildings form the boundary of a large public open space. The buildings contain facilities that are used not only by students and faculty members, but are also used frequently by outside organisations for conferences and other events.
The claims in these proceedings concern alleged defects in and related to the facing brickwork to Blocks 1, 2 and 3. The brickwork was designed by JMP (and the Third Party, “Gifford”) and built by LOR (or, more precisely, by its subcontractor Irvine Whitlock).
It is UoM's case that JMP was in breach of contract with respect to its designs (and its coordination and integration of the design of others) for the Blocks, in particular its designs for the movement joints in the brickwork cladding.
Further, it is UoM's case that LOR was in breach of contract with respect to the construction of the brickwork cladding and associated works. It is said that LOR's works were defective and were not carried out in accordance with the Building Contract nor with reasonable skill and care. It is also said that JMP is liable in respect of the defects in LOR's works, on the basis that JMP ought to have identified the defects during the project and taken appropriate steps to address them.
UoM says that in order to remedy the defects, significant remedial works are necessary including the wholesale replacement of the outer brick skin on all three blocks. In 2018 the estimated cost of remedial works was £5,961,060. It was said that with other consequential losses the claim amounted to over £10.2 million.
By February 2020 the sum claimed had mounted to £13,741,464, and is said by UoM now to be likely to be far higher still.
LOR has joined to the proceedings Gifford Global Ltd (“Gifford”) as Third Party: Gifford are a firm of structural engineers said to be responsible for the movement joints in the allegedly defective brickwork.
The dispute as to conditions to be attached to permission to adduce expert evidence
UoM seeks permission pursuant to CPR 35.4(1) to adduce expert evidence from a structural engineering expert, Mr. Bob Stagg of Alan Conisbee Associates.
LOR submits that that permission should be made conditional on UoM disclosing the following two categories of documents (there was originally a longer list as I set out below):
(1) Category 1: any report (draft or final), letter, email, note or other document produced by UoM's former experts, Dr Garvin, Dr Casson and Mr Conisbee (other than the reports expressly relied upon and provided by UoM), in which they expressed opinions:
a) In relation to the dispute; alternatively
b) On the issues of what would be an appropriate remedial scheme and the reasonableness of UoM's decision to replace the entire outer brickwork.
(2) Category 2: any attendance note or other document produced by UoM's past and present solicitors (Eversheds and Clydes) recording (or purporting to record) meetings, telephone calls and other discussions with Dr Garvin, Dr Casson and/or Mr Conisbee evidencing their opinions on what would be an appropriate remedial scheme and/or the reasonableness of UoM's decision to replace the entire outer brickwork.
The premise of LOR's position is that UoM has changed its experts. This premise is not entirely accepted by UoM.
The Authorities
I was referred to a number of authorities.
In Beck v Ministry of Defence 1, the Court of Appeal considered a case in which defendants had lost confidence in the psychiatrist who had been instructed on the defendants' behalf. A District Judge granted the defendants permission to change expert.
In his judgment at paragraph [16] Simon Brown LJ referred to a previous decision of the Court of Appeal:
“Before turning to the next paragraph of Judge Langan's judgment, it is convenient to cite the most directly relevant passages from Sachs LJ's leading judgment in Lane v Willis [1972] 1 WLR 326. There are three. At p 333 A-C:
“The principles upon which a court should, in aid of obtaining a medical examination of one of the parties to an action, act when deciding whether or not to take the somewhat strong course of staying the action is a medical examination is not afforded, are by now clear. An order for a medical examination of any party to an action has been well said to be an ‘invasion of personal liberty’. Accordingly, it should only be granted when it is reasonable in the interests of justice so to order. When the refusal of a medical examination is alleged to be unreasonable, the onus lies on the party who says it is unreasonable and who applies for the order to show, upon the particular facts of the case, that he is unable properly to prepare his claim (or defence) without that examination. The onus lies firmly on the applicant, as Mr Turner very rightly conceded.”
“At p 333 H:
“This is a serious neurosis case and it is right to emphasise that in such a case each successive examination of the unfortunate plaintiff must be apt to disturb him and to aggravate the very thing for which he is claiming compensation. To that extent a plaintiff in his position requires – as was given to him by his solicitors – every effort made to protect him against unnecessary examinations.”
“At page 334:
“it has become plain that in future cases of this particular type (if these should ever recur) such medical evidence should be produced: no room should be left for a plaintiff to wonder whether the application is really due to the reports of a defendant's medical expert being unfavourable to the plaintiff.”
Simon Brown LJ said later:
“20. …. What I confess to having had some difficulty in understanding is why the defendants should not be required to disclose Dr Goodhead's report. There are two aspects of this. Different considerations arise depending on whether disclosure is
said to be required (a) before the decision is taken either to allow or to refuse the application to change experts; or (b) as a condition of granting such an application. It appears that the argument in this case has hitherto focused exclusively on the first stage ….“….
“23. The burden of the defendants' argument in this regard is that, whilst it is one thing to assert, as clearly in general terms they were asserting, that their expert's report, essentially supportive of their case though it was, was in many respects unsatisfactorily set out and reasoned; it is quite another to be forced to make that argument by specific reference to the details of the report, every point...
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