Case notes

Building a bad reputation

Mr Tombs had been a labour-only brickwork subcontractor for 12 years. He had been working for Wilson Connolly Limited (WCL) for several years. Between 2001 and 2003 he worked on four WCL housing sites. NHBC had recommended remedial works to a house on one of these sites. A report commissioned by the owner said that the facing brickwork was out of plumb and deformed and that two-thirds of the wall-ties were missing.

Tombs was also not progressing the brickwork quickly enough. At a meeting in April 2003 he agreed with WCL that he would not start any new plots but would complete existing ones. But a few days later Tombs withdrew his labour because WCL had not given him an unqualified promise that his applications, dated March 27 and 28, would be paid. Tombs sued WCL for £101,604 for wrongful repudiation and WCL counter-claimed for correcting Tombs’ defective work.

The court found that as Tombs had agreed to forego the remaining plots, there was no repudiation by WCL. Even if there had been, Tombs had not proved his damages. He had also left site too early, as the March valuation would not have been due until several days after he had quit. The money was not due as Tombs’ applications had neither been compiled accurately nor signed by the site manager. So Tombs had to pay WCL a net £54,356 for defective work.

Moral: Brickwork ties can be a bind

Case: Tombs versus Wilson Connolly Ltd. November 9, 2004 TCC [Bliss IB 46/6]

Over-zealous ‘expert witness’ faces liability himself

CIOB members can be called on to be expert witnesses. But there is a downside.

Dr Zamar was a consultant psychiatrist appointed to examine Mr Symes for mental capacity. Zamar produced an expert report (complete with a signed statement that he understood and complied with his duty to the court) that concluded that Symes was not fit to give evidence or to give a reliable account of events. Zamar even said Symes had been incapable of managing his own affairs since 1980.

In a judgement critical of Zamar’s report, the court disagreed and found that Symes did have sufficient mental capacity.

The administrators of Symes’ estate said Zamar had disregarded any material inconsistent with his first opinion and had assumed a role as an advocate for Symes. They wanted to recover wasted costs from Zamar alleging he had breached his duties to the court by behaving irresponsibly.

In considering the duties and responsibilities of expert witnesses, the court held that if an expert witness was failing in his duty to assist the court, he could end up in court himself and be ordered to pay costs. The court agreed that Zamar would have to defend the accusation.

Moral: Expert witnesses are not hired guns

Case: Phillips and others versus Symes and others. Oct 20, 2004, (EWHC 2330) [Bliss IB 41]

Can’t make my meeting? Then I’ll favour the other guy...

A&S Enterprises (A&S) was working for Kema Holdings (Kema) at a site at Alfreton in 2003. The contract was based on the JCT With Contractor’s Design 1998. However, the basis for payments was not defined.

Kema had employed architect Ernest Austin who continued to work during the construction phase of the project, but his responsibilities and duties were unclear.

A&S sent its valuation applications to Austin, who then issued certificates. Kema paid the first five certificates without question but balked at the sixth which took the total sum over contract value.

A&S went to adjudication. Kema argued that as the contract had no provision for the issue of payment certificates, the scheme for construction contracts applied. A&S should have issued its application No. 6 to Kema, not to Austin. Kema also said the data supporting the application was inadequate.

The adjuducator called a meeting between the parties, and afterwards decided that Austin had no authority to issue certificates. Austin attended the meeting, but not Kema’s representative Mr Overend, even though the adjudicator had asked for him especially. The adjudicator awarded A&S £89,475. Kema refused to pay.

In the enforcement proceedings the court held that the adjudicator had been overcritical of Kema and had taken Kema’s evidence too much in the light of Overend’s failure to attend the meeting.

Thus the decision would not be enforced.

Moral: Bias tips the balance against you

Case: A&S Enterprises Ltd versus Kema Holdings Ltd. July 2004. [Bliss IB/46]

Problem pile-up on the M6

Amec started its renovation work on the Thelwall Viaduct on the M6 for the Highways Agency (HA) back in 1995. This was under the ICE 5th contract with an element of design. The work included replacing the existing reinforced concrete slab and installing new roller bearings.

In December 1996, the Engineer, Pell Frischmann, certified the works as substantially complete. However, in June 2002, the HA spotted that the new bearings in Pier V had deteriorated and bearing number 5 had failed completely. Pell Frischmann told HA that Amec was responsible for the design and on July 29, 2002 HA warned Amec.

A meeting on September 20 agreed that further investigation was required and on October 7, Amec wrote asking for more details. Instead on December 6, HA wrote Amec holding it responsible for faults at a repair cost estimated at up to £20m. Amec replied on December 10 that it still could not comment without the details it had requested. On December 11, HA asked Pell Frischmann for a ‘Clause 66 Engineer’s decision’. This was issued on December 18 but it was limited to work around Pier V.

When the Treasury solicitor received no same-day response from Amec agreeing with the Engineer’s decision, the Treasury solicitor immediately issued a notice of arbitration. Amec argued the arbitration was void as no dispute had crystallised. And the ‘dispute’ was limited to the scope of the Engineer’s decision. The court disagreed, saying that HA’s December 6 letter was sufficient notice of a dispute.

Moral: You can be railroaded on the M6

Case: Amec Civil Engineering Ltd versus Secretary of State for Transport October 11, 2004 (TCC) [Bliss IB/43/7].