Dispute centres on allegations of defective steelwork carried out over a decade ago
Morgan Sindall’s £10m claim against a consultant for allegedly failing to spot defective steelwork designs for work at Old Trafford cricket ground will be allowed to progress, after a judge rejected a request for the case to be dropped.
A judge at the Technology and Construction Court accepted consultant Capita’s accusation that the contractor had deliberately delayed progressing its claim while it explored other options, he said it did not constitute abuse of process and refused the strike out request.
While court documents filed as part of the strike-out judgement do not go into detail about the alleged defects, the £12m Old Trafford job – which involved improvements to the south east and south west stands for Lancashire County Cricket Club – was set back by widely reported structural steel problems in 2012.
Construction was halted for a week in 2012 after site staff spotted a problem with a supporting beams one of the two 3,500 capacity stands under construction.
An emergency inspection was carried out on both stands and a solution was put in place, with temporary support columns installed as an intermediate measure to allow the stands to open in time for the 2012 season.
West Yorkshire steel firm Sabre Structures went into administration during the build and when Morgan Sindall finally completed remedial works – installing additional structural steel to replace the view-obstructing columns – in 2014, it had incurred significant extra costs.
Morgan Sindall has obtained a default judgement against Sabre and has also begun proceedings against the steel specialist’s insurers Aviva, which denies liability.
Even if Morgan Sindall wins its case against Aviva, the firm’s liability under Sabre’s insurance policy is limited to £5m, leaving a shortfall against the losses claimed by the contractor.
Capita’s involvement in the case, according to court papers, relates to Morgan Sindall’s claim that the consultant failed to review Sabre’s designs adequately or warn “sufficiently strongly and sufficiently early of the defects”.
Capita contends that the problems were caused by Morgan Sindall’s engagement of Sabre and in choosing “not to follow or adopt the design provided by [Capita] but instead to adopt a ‘value engineered’ course and to use Sabre’s design”.
The firm insists it provided warnings and that Morgan Sindall did not share sufficient information early enough for it to provide stronger warnings but the contractor says these warnings were “insufficient”.
Capita’s request to strike out the case was made on the grounds that Morgan Sindall had delayed the commencement of proceedings and further delayed the progress of the case.
An initial pre-action protocol letter of claim was sent in February 2014 and the subsequent years saw on-off correspondence between the two parties.
In February 2016, responding to a letter from Morgan Sindall’s solicitors, Capita’s solicitors pointed out that it had been more than six months since they received correspondence from the claimant’s representatives, and expressed that they were “baffled” by the “glacial pace” at which the claim was being progressed.
Capita also noted that there was a period of 21 months between March 2020 and November 2021 in which it received no communications from Morgan Sindall.
Capita says the delay has potentially prejudiced the case against them, with two of its potential lay witnesses having left the firm and remain unresponsive to recent correspondence.
Its expert witness, who was originally engaged in 2014, is now aged 78 and, according to the court papers, “there is an inevitable risk that he will not be available for a trial at some point in the future”, given that the case management conference is only being conducted this month.
The firm contends that the contractor began proceedings with no intention of pursuing them and was keeping them “on the back burner” while pursuing other routes, including the Aviva lawsuit – it wanted the case dropped based on this alleged abuse of process, despite Morgan Sindall having now brought the claim to life.
Justice Eyre’s interpretation of the case was that Morgan Sindall had “deliberately” put the matter on hold to “tread water” while it clarified its position with the Aviva case.
Nor did he accept the contractor’s argument that the Aviva claim was so closely related that progressing it was tantamount to progressing the Capita claim.
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But he said tying up the action against Aviva first was “commercially sensible” for Morgan Sindall and noted that Capita had acknowledged as much and urged this course in November 2017 and again the following year.
He also agreed that the Aviva proceedings were “not straightforward” and that Aviva had not facilitated the speedy progress of that claim.
But he was not satisfied that the delays constituted an abuse of progress and that even if he had concluded otherwise, he would not have struck out the claim.
He said: “The factors which led me to the conclusion that the claimant’s conduct was not abuse of process would operate, if the balance tipped the other way and the behaviour was found to be abusive, to reduce the gravity of that abuse.”
Both Morgan Sindall and Capita have been contacted for comment.
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