William Clark Partnership Ltd v Dock St Pct Ltd
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Stephen Davies |
| Judgment Date | 16 October 2015 |
| Neutral Citation | [2015] EWHC 2923 (TCC) |
| Docket Number | Claim No: A50MA088 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 16 October 2015 |
[2015] EWHC 2923 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
TECHONOLOGY AND CONSTRUCTION COURT
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester M60 9DJ
His Honour Judge Stephen Davies
SITTING AS A JUDGE OF THE HIGH COURT
Claim No: A50MA088
Lucy Colter (instructed by Kennedys Law LLP, Manchester) for the Claimant
Justin Mort, QC (instructed by Harrison Drury Solicitors, Preston) for the Defendant
Hearing dates: 8, 9, 10, 11, 16, 23, 24 June 2015
Draft judgment circulated: 31 July 2015
INTRODUCTION
The claimant company [ Clark] is a professional services practice which provided quantity surveying and project management services for the defendant company [ Dock Street] for a development project at a site at Dock Street, Fleetwood, Lancashire, involving the construction of a new build primary healthcare centre for the North Lancashire Teaching Primary Care Trust [ the PCT].
Clark claims that it is entitled to £174,500 as the balance of its professional fees account falling due under the deed of appointment by which it was retained 1.
Dock Street is dissatisfied with the services provided by Clark, contending that it failed to provide the specified services in certain key respects with the result that there was a considerable overspend on the project, amounting to £733,394.96 over the original contract sum as agreed with the appointed building contractor, F Parkinson Limited [ Parkinson].
In such circumstances Dock Street contends that nothing more is due to Clark, and also seeks:
(1) Repayment of the amount of £195,000 already paid to Clark, further or alternatively that there should be a deduction, by application of the principle of abatement or otherwise, from any sum payable to Clark under the deed of appointment to reflect the services not provided.
(2) Damages for breach of contract and/or professional negligence in the amount of the overspend, plus reimbursement of certain liabilities incurred in relation to an adjudication brought against it by Parkinson in the course of which it reached the settlement which crystallised the overspend. As a separate allegation Dock Street seeks to recover as damages one part of the overspend in the sum of £214,557, which it contends represents the value of unnecessary variations to the project works for which Clark is responsible [ the unnecessary variations claim].
Clark: (a) contends that it provided the services required of it and, accordingly, is entitled to payment of the balance as claimed; (b) denies that there is any right to repayment of amounts already paid; (c) denies that the right of abatement is available to Dock Street; (d) denies breach (although accepts that certain findings of breach are likely to be made following agreement reached between the experts); (e) contends that Dock Street is unable to show any causative link between any proven breach and the overspend, the adjudication liabilities and/or the value of the allegedly unnecessary variations.
At trial I heard evidence over 5 1/2 days from:
(1) The two directors of Clark involved in this project, Edward Crewdson and Fred Brindle.
(2) The sole director and shareholder of Dock Street, Mark Abbott.
(3) The surveying manager at Parkinson responsible for this project, Adrian Whittle.
(4) The project manager at the PCT responsible for this project, Philip Hargreaves.
(5) The expert quantity surveying and project management witness for Clark, David Martin, and the expert quantity surveying and project management witness for Dock Street, David Baldwin.
As to those witnesses, in summary:
(1) My impression of all three principal witnesses, Mr Crewdson, Mr Brindle or Mr Abbott, was broadly similar. They are all, I am satisfied, basically honest men, but their reliability as witnesses was compromised by the strength of their conviction that they were in the right and the other party was in the wrong. There were numerous instances where it was clear to me that each was very considerably overstating the position in their favour, both in their witness statements and in their oral evidence, and where elements of their evidence were inconsistent in important respects with the contemporaneous documents and/or the inherent probabilities. In short, this is not a case where I can start from the position that I should prefer the oral evidence of one over the other in every case where there is a dispute. Fortunately, this is not a case which turns to any significant extent on hotly contested factual issues. Insofar as I need to make findings on factual matters in dispute, I must consider the contemporaneous documents and the other evidence which I accept as reliable, have regard to the inherent probabilities, and assess the rival accounts by reference to those considerations.
(2) Mr Whittle was, I am satisfied, honest and broadly reliable in his evidence, which I broadly accept. However it does not follow that I can safely accept at face value everything that he asserted in contemporaneous correspondence, because in writing that correspondence his principal motive was undoubtedly – and perfectly properly — to advance the financial interests of his employer, Parkinson.
(3) Mr Hargreaves was manifestly honest and reliable in his evidence. Although he was also interested in protecting the position of the PCT as his then employer, it seemed to me that there was no obvious reason to doubt the reliability of his contemporaneous correspondence.
(4) Mr Martin and Mr Baldwin were both broadly speaking reliable and knowledgeable expert witnesses, who demonstrated their ability to reach and maintain independent opinions in their reports, joint discussions and statements, and in their oral evidence, even where those opinions were adverse to their respective client's interests. There were some respects in which their opinions differed, although mostly on issues which are not fundamental to the questions which I have to decide. I do not think that one was obviously more convincing than the other in every material respect. Where necessary I resolve any disagreements between them on an issue by issue basis. I did however consider that on balance Mr Baldwin's report was a little more tightly focussed and convincing than was Mr Martin's, and also that Mr Baldwin was a little more convincing witness in terms of "pure" quantity surveying matters, thus I tend to prefer Mr Baldwin's opinion on issues where there is any real doubt in my mind.
I have also received detailed and extremely impressive written openings and written and oral closing submissions from both counsel, for which I am very grateful. They also greatly assisted the court in reaching, and adhering to, sensible agreements to divide the time for cross-examination of the other's witnesses equally, so as to enable the evidence in what was a factually complex case to be concluded with the time allocated at the start of the trial with only limited overrun. There has been a considerable delay in handing down this judgment in final form, after it had been circulated in draft on 31 July 2015, due to Dock Street's wish to address me on one substantive matter, the time for which had to be extended, due to holidays and availability for a further hearing for judgment to be handed down and all consequential matters addressed.
The issues which arise for determination may be summarised as follows:
(1) Breach, causation and loss in relation to pre-construction phase services.
(2) Was the contractual trigger point for payment of Clark under the deed of appointment satisfied?
(3) Is Dock Street entitled to a deduction (by abatement or otherwise) in relation to any non-performed or defectively performed pre-construction phase services?
(4) Breach, causation and loss in relation to construction phase services: the "global loss" claim.
(5) Breach, causation and loss in relation to construction phase services: the "unnecessary variations" claim.
(6) Is Dock Street entitled to a deduction (by abatement or otherwise) in relation to any non-performed or defectively performed construction phase services?
(7) Breach, causation and loss in relation to post-construction phase services.
(8) Is Dock Street entitled to a deduction (by abatement or otherwise) in relation to any non-performed or defectively performed post-construction phase services?
My conclusion in relation to each of those issues is as follows:
(1) Dock Street has failed to make good its claim for damages in relation to the pre-construction phase.
(2) Clark is entitled to payment of the balance of £162,500 (inclusive of VAT) under the deed of appointment, subject to one deduction under (6) below.
(3) Dock Street is not entitled to make any deduction in relation to pre-construction phase services.
(4) Dock Street has failed to make good its claim for damages in relation to the construction phase.
(5) Dock Street has made out its claim to damages in relation to unnecessary variations, but only in the sum of £52,023.46.
(6) Dock Street is entitled to make a deduction of £25,000 plus VAT in relation to construction phase services.
(7) Dock Street has made out its claim for damages in relation to the post-construction phase, but only in the sum of £37,500.
(8) Dock Street is not entitled to make any deduction in relation to post-construction phase services.
The end result therefore is that subject to any issues as to precise quantification and VAT, and before any questions of interest fall to be...
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