BDW Trading Ltd v Integral Geotechnique (Wales) Ltd, Court of Appeal - Technology and Construction Court, July 25, 2018, [2018] EWHC 1915 (TCC)

Resolution Date:July 25, 2018
Issuing Organization:Technology and Construction Court
Actores:BDW Trading Ltd v Integral Geotechnique (Wales) Ltd
 
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Neutral Citation Number: [2018] EWHC 1915 (TCC)

Case No: HT-2017-000043 & HT-2017-000044

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

TECHONOLOGY AND CONSTRUCTION COURT (QBD)

Royal Courts of Justice, Rolls Building

Fetter Lane, London EC4A 1NL

Date handed down (at Manchester Civil Justice Centre):

Date: 25 July 2018

Before:

HIS HONOUR JUDGE STEPHEN DAVIES

SITTING AS A JUDGE OF THE HIGH COURT

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Between :

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Justin Mort QC and Charlie Thompson (instructed by Hugh James Solicitors, Cardiff) for the Claimant

Sean Brannigan QC and Jessica Stephens (instructed by Weightmans, London) for the Defendant

Hearing dates: 17, 21, 22, 23, 24 May, 8 June 2018

Draft judgment circulated: 6 July 2018

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APPROVED JUDGMENT

I direct that pursuant to CPR PD 39A paragraph 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

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His Honour Judge Stephen Davies

Page 2 of 2

His Honour Judge Stephen Davies:

Contents

  1. Introduction

  2. This is a professional negligence claim brought by the claimant national housebuilder, which is part of the Barratt Group and which carries on business under the trade names Barratt Homes and David Wilson Homes (``BDW''), against the defendant firm of consulting engineers (``IGL''). The essential complaint is that IGL failed to give proper advice to BDW of the risk that materials containing asbestos (known as ``ACMs'') might be present within part of a site in Ogmore by Sea near Bridgend in South Wales which it was interested in acquiring for housing development (``the site''). Since there was no contract between BDW and IGL, who was instructed to produce its site investigation report by the vendor of the site, Bridgend County Borough Council (``Bridgend''), it is necessary for BDW to establish that IGL owed it a duty of care in tort. I must resolve that issue and, if I find in BDW's favour, decide whether or not IGL was in breach of that duty and, if so, determine what recoverable loss BDW has suffered as a result and, finally, determine an issue of contributory negligence.

  3. The evidence was heard over 5 days with written closing submissions followed by a further day fixed for oral closing submissions after which I reserved judgment.

  4. I will begin by referring briefly to the witnesses, including making certain observations as to an issue which arose as to the respective roles of expert and legal adviser in relation to the preparation of the joint statements of the experts, continue by addressing the relevant facts and then address each of the four issues of duty, breach, loss and contributory negligence in turn.

  5. Witnesses

    Witnesses of fact:

  6. All of the witnesses of fact were plainly honest and largely reliable, subject to the usual difficulties facing most witnesses in recollecting the detail of events some years past and to the usual temptation for some to seek to argue the case both in witness statements and under cross-examination. This is not a case which turns to any significant degree on my assessment of the credibility of the competing witnesses of fact.

  7. Mr Peter Ballantyne. Mr Ballantyne is a senior land manager employed by BDW. He was BDW's main witness, having identified and progressed the project for the acquisition and development of the site up to completion of the purchase in his capacity as a land manager in its South Wales division. He produced a principal witness statement referring in detail to the chronology together with a supplemental witness statement responding to evidence adduced by IGL in relation to other projects.

  8. Mr Stevon Watkins. Mr Watkins is the senior estimator for BDW South Wales division, with long experience in that role.

  9. Mr David Kelland. Mr Kelland is the commercial director for the South Wales division.

  10. Mr Rhodri Williams. Mr Williams was at the relevant time a technical manager with BDW South Wales division, working within the technical department. He has since transferred to another company. He gave evidence as to his involvement with the commissioning and analysis of the IGL report and the subsequent discovery of ACMs and the remediation of the site.

    I did not hear from his then superior Mr Huw Llewellyn, who was the technical director for the South Wales division at the relevant time, but who left BDW some time ago.

  11. Mr Martin Lewis. Mr Lewis is the land director for the South Wales division.

  12. Ms Hayley Shivers. Ms Shivers is a senior quantity surveyor with BDW's South Wales division. She was responsible for procurement of the works on the site from June 2014, when she joined BDW. She gave evidence as to the consequences of the discovery of asbestos outside of the area of the buildings, in particular as to the remedial costs incurred. It became apparent that although she had done her best she was in certain difficulties in giving precise evidence due to the lack of contemporaneous records available to her.

  13. BDW also adduced a witness statement from Mr Nicholas Parsons-Young of West Environmental Services and formerly of City Environmental Services. IGL decided shortly before trial that it did not wish to cross examine Mr Parsons-Young. Although that does not mean that IGL agreed his evidence it does mean that I must approach his evidence on the basis that IGL elected not to test it in cross-examination.

  14. Mr Huw Pritchard. Mr Pritchard is a civil engineer and a director of IGL who was called as its only substantive witness. He had reviewed the draft report produced by Mr Shawley (see below), having considered the source documents and formed his own views as to the matters covered in the report before reading the content of the draft report and approving it. He was cross-examined over a full day.

  15. IGL did not call Mr Gary Shawley, who had been responsible for undertaking the desk study, the site investigation including the trial pitting and the production of the first draft of the report. He is still employed by IGL and could have been called to give evidence. It is, therefore, somewhat surprising that he was not called to give evidence. Mr Pritchard said that the decision not to call him was taken on legal advice but also on the basis that he, Mr Pritchard, took full responsibility for the report which he reviewed and endorsed and for the defence of the case. Mr Mort submitted that I should conclude that the decision not to call Mr Shawley was tactical and because IGL and its legal advisers feared that his evidence would prove unhelpful to IGL's case. I do not accede to this submission. If BDW believed that Mr Shawley's evidence would positively support its case it could of course have served a witness summary (if necessary with permission once it knew that IGL was not calling him) and served him with a subpoena to attend. If Mr Mort was deprived of the opportunity to seek to investigate any inconsistencies there might have been between Mr Pritchard's evidence and Mr Shawley's evidence that is speculation and not a legitimate matter for complaint in the absence of some evidential foundation such as an inconsistency between what they said in contemporaneous documents. If BDW was able to identify a specific pleaded issue or issues which IGL and its advisers must have known would turn on the factual evidence of Mr Shawley as to what he did or did not observe on the site inspection or from the trial pits or as to the credibility of his explanation for the contents of the report or otherwise then he would of course be entitled to invite me to draw an adverse inference against IGL in relation to that issue: Wisniewski v Central Manchester Health Authority [1998] PIQR 324. However that is not the case here.

    Expert witnesses:

  16. All four of the expert witnesses were in my judgment knowledgeable in their expert area, properly independent and sincere in their opinions both as expressed in their reports and in their oral evidence.

  17. Mr Nick Waite. Mr Waite is a chartered geologist with a special expertise in engineering and environmental geology undertaking technical assessments of potential development sites including those involving contaminated land. He was cross-examined on the basis that both he and his firm had regularly undertaken site investigation work for BDW and that he ought to have declared this in his report since it raised a potential conflict of interest. I agree that it would have been better if he had done so, however I accept that in fact there is no actual or potential conflict of evidence and that he has been properly independent in his approach. I considered that there was more force in the criticism made by Mr Brannigan that: (a) his approach was to decide what he would have done in the same situation, rather than considering what a competent engineer might reasonably have decided to do; (b) he had failed to put out of his mind hindsight as to what had been revealed when the site came to be cleared when considering whether what IGL had done fell below the standard properly to be expected from a competent geotechnical and geo-environmental engineer.

  18. Dr David Tonks. Dr Tonks is a consulting engineer with a specialism in geotechnical engineering and with considerable experience in acting as an expert witness. An issue arose in his evidence when he was asked about the preparation of the joint statement of the experts. He accepted that he had sent the first draft of the joint statement to IGL's solicitors for their comments and, having received feedback, made some changes to that draft as a result.

  19. Mr Mort rightly complained that it was quite inappropriate for independent experts to seek input from their client's solicitors into the substantive content of their joint statement or, for...

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