Authors:
Share:
The claimant is Workman Properties Limited (“WPL”), the employer under a JCT 2016 Design and Build Contract dated 6 January 2022 (the “Contract”. The defendant was the contractor, ADI Building and Refurbishment Ltd (“ADI”). These proceedings concerned a request by WPL to the court to make declarations on the interpretation of the Contract, where an adjudicator had previously made determinations against WPL in the same or similar issues.
The Employer’s Requirements to the Contract form a fundamental element of the dispute, as they state at Paragraph 1.4 that ADI “fully responsible for the complete design … of the works” (relied on by WPL), but also that “significant design has been developed to date” and has been taken to the end of RIBA stage 4/4(i) (relied on by ADI).
In August 2023, ADI referred a dispute to adjudication, seeking declarations in order to establish the basis of extension of time claims. On 23 September 2023 it was granted a number of these declarations, the key declarations being that the design in the Employer’s Requirements was not developed to RIBA Stage 4/4(i) and that WPL had given a contractual warranty that it was. On 1 May 2024, ADI brought a second adjudication for a claim in the amount of £8.5 million, of which £6.5 million related to loss and expense for claimed extensions of time. Deciding that he was bound by the first adjudication, the second adjudicator awarded an additional £3 million plus interest to ADI, of which £1.6 million related to loss and expense for extensions of time, partly flowing from WPL’s failure to complete the design to stage 4/4(i).
WPL sought alternative declarations in these proceedings. These alternative declarations, if granted, would have the effect of declaring that ADI had taken full responsibility for the design, including developing it up to and beyond stage 4/4(i), and that WPL had not warranted that the design had already been developed to this stage. In support of this position, it submitted that the Contract was clear and unequivocal in placing all design responsibility on ADI, and that there is nothing in the Contract that limits this design responsibility to a particular element or stage. It also argued that ADI’s reliance on the latter part of paragraph 1.4 of the Employer’s Requirements amounted to seeking to re-write the Contract to exclude any design work which was or should have been carried out up to the end of stage 4/4(i) from the scope of any ADI’s obligations.
ADI argued that it was correct to emphasise the statement that the design had been taken to stage 4/4(i) at paragraph 1.4 of the Employer’s Requirements, as this was consistent with the information provided by the consultants at the time of the contract and ADI’s tender, which stated it’s intention to “novate the existing design team … throughout RIBA stage 5 and beyond”. ADI also relied on a purportedly unexplained mismatch in the fees quoted to the defendant for the remaining services by its consultants and the fees initially quoted to WPL for such service, and the suggestion that its obligation to review the current design development was only intended to apply to what was contained in the design information provided, i.e. the design information which should have been provided to complete stage 4/4(i).
Ultimately, the Court preferred WPL’s case, on the basis that all of the relevant contract terms pointed to this being the correct approach. The statements made by WPL in the Employer’s Requirements of the Contract were nowhere near sufficient to require the unequivocal contract provisions (which included standard provisions and bespoke clauses) to be read as heavily qualified. The Court was satisfied that ADI retained a contractual responsibility to satisfy itself that what was in the existing design was sufficient in all respects.
However, the judge declined to make the declarations sought by WPL in the requested form, finding that these were too broad. Instead, the judge was content to make a limited declaration to the effect that ADI was contractually obliged to complete any and all necessary works to complete the design of the works up to RIBA Stage 4/4(i), with wording to be agreed between the parties’ Counsel.
This case demonstrates the risks of over-reliance on pre-contract negotiations and perceived intentions on matters of contract interpretation. In these matters, the Court will primarily look to the letter of the contractual provisions agreed between the parties, and it will require considerable evidential weight override these. However, this case is also particularly notable for its salient commentary of choice of venue. The judge noted that, given the location of the parties and their legal representatives, the guidance issued by the TCC and the lower case load of regional TCC registries, it would have been more appropriate to issue in either Bristol or Birmingham. Accordingly, any party looking to issue proceedings is well advised to take into account whether it may be best served issuing these in a regional TCC registry rather than in London, in the interest of securing shorter lead times and avoiding the ire of the Court.