Balfour Beatty Construction Ltd v London Borough of Lambeth, Court of Appeal - Technology and Construction Court, April 12, 2002,  BLR 288, EWHC 597 (TCC)
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approved subject to editorial corrections IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISIONTECHNOLOGY & CONSTRUCTION COURTHIS HONOUR JUDGE HUMPHREY LLOYD Q.C. 12 April 2002 B E T W E E N- - - - - - - - - - - - - - - - - - - - - BALFOUR BEATTY CONSTRUCTION LTD Claimant- and - THE MAYOR AND BURGESSES OF THE LONDON BOROUGH OF LAMBETH Defendant- - - - - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - -Andrew Goddard appeared for the claimant, instructed by Berwin Leighton Paisner.Jonathan Acton Davis QC appeared for the defendant, instructed by Knowles Lawyers Limited.- - - - - - - - - - - - - - - - - - - - - JUDGMENTHis Honour Judge Humphrey LLoyd QC 1. The claimant (BB) makes an application under part 24 of the CPR to enforce the decision of an adjudicator, Mr David Richards FRICS, made on 23 January 2002. The contract between BB and the defendant (Lambeth) was for the refurbishment and remodelling of Falmouth House, Penwith Manor Estate, Kennington Park Road, London SE11. The contract was apparently made as a result of Lambeth placing an order (H9855) for work to the value of £3,847,231 on 1 October 1999. Some time in March 2000 agreement was reached on all the terms At the time of the adjudication Lambeth had not apparently executed the agreement but it incorporated the JCT standard form of building contract 1998 Edition, local authorities without quantities, incorporating amendments and TC/94 and contractor's designed portion supplement 1998. The principal relevant conditions are annexed to this judgment. 2. The dispute referred to adjudication concerned the amount of damages for delay withheld or deducted by Lambeth. BB maintains that during the course of the works a number of Relevant Events (as defined in clause 25 of the JCT conditions) occurred. The works began about 1 November 1999. Notice of the delays was given in a series of letters from 5 May 2000. On three occasions the architect decided that BB was entitled to extensions of time, the last of which was granted on 15 January 2001 which fixed a new completion date for 23 October 2000. However the architect also issued certificates of non-completion on 26 September 2000 and 17 January 2001, as a result of which Lambeth became entitled to, and did, deduct damages for delay totalling £355,831.71. Practical completion took place on 24 May 2001. 3. In correspondence and at meetings, both before but mainly after that date, BB maintained that it was entitled to further extensions of time and to repayment of the damages deducted. BB relied on some 31 specified Relevant Events but a number of these were sub-divided so there were a considerable number of such events. In July 2001 BB sent the architect its ``Overall Review Analysis of its ``As Built'' programme''. However BB accepted that in August 2001 it told the architect that the critical path constantly fluctuated as a result of the many changes which increased the scope of the works and that it had said that it was not a practical proposition to determine the constantly changing critical path ``almost on a weekly basis which, in any event, is unnecessary''. That quotation comes from BB's Referral Notice. Lambeth's subsequent submissions to the adjudicator contained the following on the subject of BB's As Built programme which, although lengthy and out of chronological sequence, it is convenient at this stage to set out: ``45. Balfour Beatty had a contractual obligation pursuant to clause 250 of the specification as follows: Monitoring: Record progress on a copy of the programme kept on site. If any circumstances arise which may affect the progress of the works put forward proposals or take other action as appropriate to minimise any delay and to recover any lost time. 46. In breach of contract BB failed to record progress on any programme, on site, or otherwise, and/or in breach of contract BB failed to put forward proposals to minimise delay and/or to recover lost time. Lambeth submits that in consequence of the failure of BB to comply with its contractual obligations it is now not possible with any degree of certainty to determine the date or duration that the various activities were undertaken by BB, nor the impact or effect on other linked or non-linked activities. Lambeth submits that this being the case it is impossible to properly assess the true causes of the delay to the completion of the works and the dates and durations of the delays claimed by BB are nothing less than speculation. 47. BB has submitted the following ``final as-build programmes''. F0315/FAB1 - Critical Trade Activities FAB2 - Stripping Out and Demolition Works FAB3 - Brick and Block Works FAB4 - Asphalt and Pitched Roofing Works FAB5 - Carpentry Works FAB6 - Window Installation Works FAB7 - Drylining Works FAB8 - Decoration Works FAB9 - Insulated Render Works FAB10 - Concierge Area Works. 48. As stated above, Lambeth submits that it is only when you review the ``final as-built programmes'' does the reason for the ``filter programmes'' become evident. Lambeth say that the inadequate record keeping by BB means that it can only report ``progress'' on a floor by floor basis. Lambeth submits that such general records are hopelessly vague and inadequate. By way of an example, a variation in one flat on one floor may have a delaying effect on that flat but it is submitted would have no impact or effect on the other non-affected flats on the same floor. The manner in which BB has recorded progress is that it is simply not possible to isolate any individual event. Thus an event in one trade in one flat on the one floor is depicted as a delay to all of the entire floor. This is simply not credible and calls into question the entire reliability of all of the programmes. 49. BB programmed the works on a flat type basis (albeit without identifying the critical path for same) and at the very least BB should have measured progress against these same flat types. That way it would have been possible to compare the planned progress with the actual progress in a meaningful way. Instead all that BB have provided is an aggregate of all the planned time and compared with all the actual time on a trade by trade basis. No attempt has even been made by BB to demonstrate any link between the trades. 50. Lambeth would also observe that as with the ``as-planned'' programmes, the ``Final as-built programmes'' also fail to identify any critical path. 51. Before looking at the ``final as-built programmes'' exhibited by BB, Lambeth would make passing reference to the delay analysis methods most widely recognised and used: (I) Time Impact Analysis (or ``time slice'' of ``snapshot'' analysis). This method is used to map out the impacts of particular delays at the point in time at which they occur permitting the discrete effects of individual events to be determined. (II) Window analysis. For this method the programme is divided into consecutive time ``windows'' where the delay occurring in each window is analysed and attributed to the events occurring in that window. (III) Collapsed as-built. This method is used so as to permit the effect of events to be ``subtracted'' from the as-built programme to determine what would have occurred but for those events. (IV) Impacted plan where the original programme is taken as the basis of the delay calculation, and delay defaults are added into the programme to determine when the work should have finished as a result of those delays. (V) Global assessment. This is not a proper or acceptable method to analyse delay. 52. It is Lambeth's case that the programme of BB do not conform or comply with any of the recognised and accepted delays analysis methods. Further all that it has provided by BB is a claim in the most global of natures. It is observed that BB has provided no explanation whatsoever as to why it has not used any of the above mentioned delay analysis techniques, nor even why it has pleaded its case on a global basis. Lambeth suggest that this is because none of the above methods would not substantiate the delays claimed by BB. 53. Lambeth submits that it would be of assistance to the adjudicator to provide its comments on the ``as-built'' programmes submitted by BB.'' 4. The discussions with the architect came to an end effectively in early September 2001. BB gained no further extension of time. It does not appear that BB had in the summer of 2001 produced anything new to the architect. Had BB commenced an arbitration at that time then, in the right hands, that arbitration would by now have been reaching a conclusion. 5. BB decided, however, to seek adjudication. It gave notice of adjudication on 5 December 2001. As it is and has always been Lambeth's case that the decision of the adjudicator was ``without jurisdiction'' it was somewhat surprising that neither party had put in the notice of adjudication or even had it available in court. Since the jurisdiction of an adjudicator is normally defined by the notice of adjudication (and not by the referral notice) it is almost always essential that it should be produced if the enforcement of the decision is challenged for want of jurisdiction. 6. In this instance, however, it was clear and it is common ground that the dispute related to the damages deducted or withheld by Lambeth and accordingly the adjudicator was being asked to review the certificates of non-completion given by the architect. Clause 41A.5.2 of the JCT conditions expressly gives to the adjudicator what would otherwise be inferred, namely the power to open up, review and revise such a certificate. Before issuing a certificate that the contractor has failed to complete the works by the completion date, as provided by clause 24.1, an architect has to consider whether it should be issued. In doing so the architect has thus to consider any grounds which might excuse the contractor for failing to complete the works by the completion date. Thus the architect will carry out the...
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