Citation: EWHC 2152 (TCC)
Abstract
This case determined an application by the defendant (‘Sisk’) that the claimant’s (‘BH’) claim was not suitable for pleading under the procedure in CPR Part 8. The claim related to a dispute about which party was liable for omissions and errors in a design. It was held that the factual issues in this case were not short or narrow such as would enable them to be determined on the basis of inferences drawn from documents before the Court.
Factual background
BH were two related companies who employed Sisk, a building contractor, in a project that involved the construction of three bridges over the Jubilee Line and DLR, and a new station at Twelve Trees Park, London. The claimants invited Sisk to tender for a Pre-Contract Services Agreement (‘PCSA’) in 2017, which was later formally executed in 2018. Thereafter, the parties worked on the tender design, although the scope of Sisk’s involvement was contested. The tender design was developed, and a formal building contract was executed in Dec 2020. The parties discovered errors and omissions in the tender design. In Jul 2021, the parties entered into two novation agreements: one with the project engineers and one with the architects. BH brought the claim under the Part 8 procedure on the basis that it could be resolved as a matter of pure contractual construction. There were no previous proceedings or adjudications.
Parties’ submissions
BH argued the claim was suitable for Part 8 as Sisk took complete responsibility for the whole design without reservation from the moment they entered into the contract, and that no express terms provided for recovery for error or omission. BH relied on clause 8(2)(b) of the building contract, which provided that where any part of the works has been designed “by or on behalf of the Employer”, then Sisk “shall Adopt the design”. Sisk disputed BH’sinterpretation of the contract and the appropriateness of the Part 8 procedure on this basis. Sisk relied on section 2.2 of the Employers’ Requirements (‘ERs’), which provided that Sisk was only to take on design responsibility when RIBA Stage 4 was achieved. They submitted that they were not liable for the errors/omissions as this came before Stage 4.
Ratio
The Judge held that the factual issues in this case were not short or narrow or something that can be determined on the basis of inferences drawn from documents before the Court. In the absence of agreement between the parties as to how the dispute should be determined, the Judge held that it would be “contrary to the overriding objective” to determine the issue without hearing further evidence from Sisk: [47]. The court concluded that the Part 8 procedure was not the correct procedure since the dispute was not contained within the four corners of the contract. The Judge held that as he did not consider that Sisk’s construction stood no reasonable prospect of success, he could not decide the construction issues summarily: [48].
Thomas Lazur for Claimants
Sarah Hannaford KC and Ben Graff for Defendants
