Williams Tarr Construction Ltd v Anthony Roylance Ltd
| Jurisdiction | England & Wales |
| Judge | Eyre |
| Judgment Date | 14 September 2018 |
| Neutral Citation | [2018] EWHC 2339 (TCC) |
| Docket Number | Case No: C50MA040 |
| Court | Queen's Bench Division (Technology and Construction Court) |
| Date | 14 September 2018 |
[2018] EWHC 2339 (TCC)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BUSINESS AND PROPERTY COURTS IN MANCHESTER
TECHNOLOGY AND CONSTRUCTION COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester M60 9DJ
HIS HONOUR JUDGE Eyre QC
Case No: C50MA040
Mr. David Fearon (instructed by Brabners LLP) for the Claimant
Mr. Crispin Winser (instructed by Watson Burton LLP) for the Defendants
Hearing dates: 25 th, 26 th, 27 th, 28 th 29 th June 2018
HH Judge Eyre QC:
Introduction.
The Second Defendant is a chartered civil engineer and the First Defendant is a company formed by and controlled by him. The Claimant is a construction company and in 2010 it was engaged in construction works arising out of the development of the site of the former Albany Mill in Canal Street at Congleton in Cheshire (“the Site”). The works on the Site included the construction of a retaining wall (“the Retaining Wall”) at the southern end of the Site running roughly parallel to the southern boundary. There is no dispute that in November 2010 there was an engagement whereby the First or Second Defendant was to provide civil engineering services to the Claimant. However, there is dispute as to whether the engagement was of the First Defendant or of the Second Defendant and as to the nature of the engagement. The Claimant says that the Second Defendant was engaged in his personal capacity; that the engagement related to the Retaining Wall itself; that the Second Defendant undertook an obligation to ensure that the Retaining Wall was fit for purpose; and that the Second Defendant breached that obligation causing loss to the Claimant. The Defendants dispute each of those propositions.
The Factual Background.
The Site was being developed for housing. However, that development was not a straightforward exercise. The Site was lower than the adjoining land (which was occupied by housing) and itself sloped markedly from South to North (the Canal Street side of the Site). Consequently there was a need for a number of retaining walls and in particular for the Retaining Wall.
The Claimant was engaged as main contractor in March 2010. Initially there were two employers, Terra Nova Developments Ltd and Renew Land (Albany Mill) Limited (“Renew”). The latter was a company which had been formed for the purpose of promoting and packaging the development of the Site but which has now been dissolved. The former ultimately became the sole employer but Renew retained an interest in the Site and continued to be involved on the ground through its director, Lee Dawkin. The Claimant engaged Construction Site Services (UK) Ltd (“CSS”) as its sub-contractor. The Second Defendant provided civil engineering services in respect of the Site (doing this either in his personal capacity or through the First Defendant). The parties were not agreed as to whether the Second Defendant was acting pursuant to an engagement with Renew or as a sub-contractor of CSS. That matters not for the purposes of the present case. It is common ground that the Second Defendant worked closely with CSS and that there was at this stage no direct engagement of either defendant by the Claimant.
The original intention had been that the Retaining Wall should be a blockwork wall but it was subsequently decided that it would be made of stone-filled gabion baskets. The Defendants say that this was because the Second Defendant had explained to CSS that a blockwork wall solution would not work because of the height of blockwork wall which would have been needed. They say that the proposal that there should be a gabion wall came from CSS. An initial approach to Macaferri Ltd for the provision of gabions had not been productive. An approach was then made to Hy-Ten Limited trading as Hy-Ten Gabion Solutions (“Hy-Ten”) and the gabions were provided by that company. There was considerable dispute before me as to the nature and extent of the Second Defendant's involvement in the design of the Retaining Wall and as to the respective responsibilities in relation to it as between him and Hy-Ten and those are matters I will consider further below.
The installation of the Retaining Wall was undertaken by CSS and began in late August or early September 2010. In the course of those works a band of running sand was encountered. This meant that the water flows behind the Retaining Wall were greater than had been anticipated. By the middle of October 2010 it was apparent that problems were being encountered in the installation of the Retaining Wall and the response to these included the Claimant's engagement of the First Defendant or the Second Defendant in November 2010.
The key dispute between the parties is as to the scope of that engagement. The Claimant says that the First Defendant or the Second Defendant was engaged to provide a solution to the problems with the Retaining Wall so as to provide a design ensuring that the wall would be fit for purpose. It says that the Second Defendant proposed a further drain to the south of the Retaining Wall as being all that was needed to enable the Retaining Wall to be fit for purpose. It says that the exchanges constituting the engagement referred to that drain because that was the solution which the Second Defendant had put forward. The Defendants say that the engagement did not require either of them to bring forward a solution to the problems with the Retaining Wall let alone to warrant that the wall would be fit for purpose. Rather the engagement was to design a drain which would address the problems with water inflow so as to enable access to be effected to the rear of the Retaining Wall.
The Second Defendant (whether acting in his personal capacity or through the First Defendant) then provided a design for a drain to the south of the Retaining Wall. There is no suggestion that this design was defective or deficient as a drain.
The work of installing the Retaining Wall continued and it was completed in March 2011.
It is common ground that the Retaining Wall as constructed was defective and that further works were needed. It is also common ground that the Claimant engaged in substantial works, the main feature of which was extensive piling, to address the problems flowing from the defective state of the Retaining Wall although there was dispute as to the precise extent of the works properly attributable to this and as to the precise financial effect upon the Claimant.
The Claimant engaged in an adjudication against CSS contending that the deficiencies in the Retaining Wall were the results of failures on the part of CSS in the course of the construction and installation of the Retaining Wall. The Defendants say that this contention was correct and that the problems were, indeed, the result of failings on the part of CSS. In July 2011 the adjudicator accepted the Claimant's submissions and declared that the Claimant had been entitled to determine CSS's sub-contract.
However, the Claimant derived no benefit from its victory in the adjudication. This is because it is common ground that CSS is insolvent. The Defendants say that this is the true reason why the Claimant has now brought this claim against them with the Claim Form not having been issued until 9 th August 2016 and pre-action protocol correspondence only having been sent on 22 nd August 2016. The Defendants say that proceedings have been brought towards the end of the limitation period in an attempt to find a solvent party from whom to seek compensation. They say that the allegations made against them are inconsistent with the case which the Claimant asserted against CSS in the adjudication. The Claimant says that the claim is properly brought against the Defendants and that it had brought the adjudication against CSS because the Second Defendant had led it to believe that the deficiencies in the Retaining Wall had been caused by that company's failings in the construction works.
The Competing Contentions in Outline.
The Claimant says that the Second Defendant acted in his personal capacity in the dealings with the Claimant. It says that although Hy-Ten provided and designed the gabions used in the Retaining Wall it was the Second Defendant who designed that wall or at least had overall responsibility for its design. The Claimant says that the effect of the dealings in October and November 2010 was that the Second Defendant was engaged to review and redesign the Retaining Wall on terms that he was warranting that in its final state it would be fit for purpose as a retaining wall at the location in question. The Second Defendant is said to have breached his obligations in that the Retaining Wall was not fit for purpose. Further works were needed to provide for retention of the land. These works would not have been necessary if the Second Defendant had performed his obligations properly and the Claimant seeks to recover the cost of the further works together with consequential losses from the Second Defendant. In the Particulars of Claim the recoverable sums were said to total £320,549 but by the end of the trial the Claimant's position had modified to seek sums of between approximately £235,000 and £300,000 (depending on which of two alternative options was adopted in respect of the extent of the piling works attributable to the alleged breach).
The Defendants accept that there was an engagement in November 2010 but they portray it in rather different terms than the Claimant. They say that it was an engagement of the First Defendant and not of the Second Defendant. They deny that the Second Defendant (whether acting in his personal capacity or on behalf of the First Defendant) had either designed the Retaining Wall or had taken responsibility for...
To continue reading
Request your trial
-
Completing The Contract First: Does It Matter?
...the dangers of proceeding without an executed contract. Williams Tarr Construction Ltd v Anthony Roylance Ltd & Anthony Roylance [2018] EWHC 2339 (TCC) Williams Tarr Construction ("WTC") claimed against an engineer, Mr Roylance, who had provided some design services in relation to a def......
-
Contract formation
...3.207. 436 See, eg, Kam Ying Hung v Diane Cecile Freis [1996] hKCFI 772; Williams Tarr Construction Ltd v Anthony Roylance Ltd [2018] EWhC 2339 (TCC) at [44]–[53], per hhJ Eyre QC. an analogous source of confusion may arise where an individual trades under a particular business name, which ......
-
Table of cases
...(1879) 12 Ch D 787 III.26.72 Williamson v Murdoch (1912) 14 WALR 54 II.13.173 Williams Tarr Construction Ltd v Anthony Roylance Ltd [2018] EWHC 2339 (TCC) I.2.136 William Tomkinson & Sons Ltd v he Parochial Church Council of St Michael (1990) 6 Const LJ 319 II.14.06, II.14.48 William Verry ......