National Museums and Galleries on Merseyside (Trustees of) v AEW Architects and Designers Ltd

A Brief Description of the Elements of Work in Issue

The General Chronology

The Witnesses

Sharon Granville: the Executive Director of the Museum who had been seconded into the project on a full-time basis since 2004, spent a considerable amount of time setting up the project and keeping a reasonably close eye on what was going on. She was astute and experienced in her job. For instance her descriptions relating to the actual and potential disruption to the work and exhibits of the Museum during the remedial works were extremely helpful in giving a very real insight into the major difficulties which the Museum suffered and will suffer when the remedial works were and will be carried out; that had the ring of absolute truth about it. She became even more involved when it began to emerge that there were problems with the steps and seats. She was a very impressive witness and one whose evidence I have no difficulty in accepting largely in its entirety. She was prepared to make concessions with regard to some of the quantum evidence which underlined her basic honesty and integrity. She was subjected to polite but firm cross-examination by Leading Counsel for AEW about quantum matters but she stood up extremely well to that and I found her immensely believable.

Colin Matley: he was from August 2005 the Quantity Surveyor for the project employed by Turner and Townsend. He was originally called to give evidence primarily in relation to an issue raised on the pleadings by AEW, which was the extent to which the Client Change Control Procedure had been implemented, in particular in relation to CVI 340 and the construction of the plinth in late 2009. He explained that he had produced some of the details of quantum and indeed it was primarily about that area of the case about which he was cross-examined. I found him to be a decent and convincing witness.

John Hewitt: he was from November 2008 the Contract Administrator who had 26 years’ management experience on large-scale construction projects in the UK and abroad. Again his evidence was called to deal with the Change Control Procedure. Although initially somewhat nervous when he started to give evidence, he gained confidence as a witness. I formed the view that he had a good general recollection of what had happened, that he was a decent and positive witness and that he was broadly a credible witness. In particular his evidence about the leaks through the membrane in the steps and seats areas was clear and firm.

Ian Williams: he has worked for the Museum for some 13 years and had been involved in the Museum project since its inception. He was the Director of Estate Management with responsibility not only for the Museum but also a number of other museums and galleries run by the Claimant. He was a straightforward witness and ready to concede that an estimate of time spent by him in relation to the steps and seats works might be excessive. He was involved in the steps and seats problems as they emerged in early 2010 and again with the ceiling collapses and problems. He was asked questions that went to quantum and I found him to be impressive and believable.

Martin Hemmings: he has been the Building Operations Manager within the Estate Management Department of the Museum since about 2002 and was resident on-site that this project from June 2008. He was the "eyes and ears on site" for the Museum. He was down-to-earth, sensible and honest. Again, he was asked questions which related to quantum and what he had to say was believable. He gave some practical evidence about how very complicated the process of lifting and placing the seats and seats actually had been. He gave practical and helpful evidence about likely access problems when remedial works are to be done

Robert Batchelor: he was the Client Project Manager for Exhibition Projects Ltd which was retained by the Museum in connection with the exhibition fit out of the Museum. He gave evidence in connection with aspects of quantum in relation in particular to the work required to the SAS ceilings areas and in relation to other work yet to be done. He was sensible and a decent straightforward witness.

Martin Lawton: he was the Project Manager for the new Museum project taking over that role in July 2009. He was employed by Mace Ltd which was in turn employed by the Museum he was called to give evidence about liability and was mostly cross-examined about quantum and in particular about his and his firm's involvement in the aftermath of the steps and seats issues arising. He was a reliable witness.

Peter Bettridge: he was the Project Quantity Survey who was effectively the site representative for the Contractor. Although honest, I felt that he was somewhat careworn if not diffident in the giving of his evidence. He did not always answer relatively simple questions put to him. Much of his written evidence was not challenged but I am circumspect about the reliability of his evidence where it differs from contemporaneous documents.

Torben Seemann: he was an engineer assigned to the Museum project in April 2009 primarily to monitor and promote quality assurance. Much of his evidence was related to the chronology and correspondence. He was a reasonably reliable witness.

AEW was responsible for the general layout of the geometry of the steps and seats.

The Contractor’s Technical Query, TQ 1676, identified what it believed was a "clash".

Following discussions on site, it was AEW which proposed the "plinth" solution in CVI 340.

(Although this had not been alleged as such by the Museum), AEW’s original design was capable of being constructed by the Contractor and therefore it should have informed the Contractor that this was so in answer to TQ 1676. Accordingly, CVI 340 should not have been issued. It was accepted orally by Mr Reed QC on behalf of AEW that this was negligent of AEW.

The Museum is not bound by any agreement in relation to be construction of the plinth and did not acquiesce in its construction.

The SAS ceiling was not designed adequately by AEW in that the original specification in September 2006 specified that the lighting tracks and the ceilings within the museum were to be supported separately and AEW amended that design so that the ceilings were to be installed supportive by ERCO lighting track; the design should have been as per the original specification. Other aspects of the design set out in Paragraph 39 of the Particulars of Claim were accepted as being inappropriate. Mr Reed QC also confirmed orally that in this context AEW was negligent.

It was accepted that the design was not adequate in relation to the Armstrong Ceilings in that additional perimeter clips were required to be installed. However this was a matter for the specialist subcontractor. Mr Reed QC did not accept that there was any liability in this context.

The consultant shall provide those services included in Schedule 1 Part 2…

[AEW] warrants and undertakes to the Employer that he shall perform his duties such that the Project will comply with all planning…permissions and conditions…

[AEW] further warrants and undertakes to the Employer that in respect of the complete architectural services in relation to the Project as set out in this Deed he has exercised and will continue to exercise reasonable skill and care and diligence to be expected of a professional person acting in the capacity of a consultant experienced in carrying out such services for a development comparable in size, scope, complexity and purpose to the Project and within the scope of this Deed.

[AEW] further warrants and undertakes to the Employer that in respect of the Services he has carried out pursuant to the Sub-Appointment [when engaged by 3XN] he has exercised the reasonable skill and care and diligence which may reasonably be expected of a properly qualified and competent Architect/Contract Administrator experienced in carrying out such services as those specified in the Sub-Appointment."

So far as what the specified or possibly approved reinforcement cover should have been, there was much emphatic debate by the experts engendered by some firm cross-examination. Much of this debate involves considering a variety of British Standards and Codes of Practice, with different parties and experts seeking to support the need or desirability of cover ranging between 20 mm and 35 mm. I start from the proposition, accepted by all and in any event clear on the evidence, that this building was to be a prestigious one and was intended to provide an architectural legacy to the people of Liverpool. Mr Tutt rightly describes it as a "dramatic, landmark structure" which it clearly was intended to be. It was not a temporary building or a concrete tower block intended to be removed and replaced within 25 years or so in any event. It was supposed to have a long life. It is again clear that AEW in the specifications produced for the project did not actually identify specifically what useful life the steps and seats were supposed to have; a document produced by Buro Happold ("Building envelope description and cladding types") defined a design life of the building of 100 years and of the facades of 50 years but, of course, the steps and seats do not as such fall within either of these categories. Although the experts have agreed in effect by analogy that it would be reasonable to interpret the specification as requiring a 50 year design life for the steps and seats, the failure to identify a design life for these aesthetically and functionally important amphitheatres is symptomatic of an architect which had simply not applied its mind to what was required for key elements of the works. However, in the light of what the experts have agreed, necessarily I therefore proceed on the basis that, if AEW had applied its mind to what the design life of the steps and seats should be, it could reasonably have come up with 50 years and it is by reference to that criterion that I go on to consider what cover should have been specified.

I asked several of the engineer experts whether in the light of the importance of the building and the design life it would be better to err on the side of caution in fixing the amount of concrete cover for the steps and seats. Mr Tutt convincingly answered that it would not be right to be academic about this and one should err on the side of caution. I accept that evidence as sensible and logical not only because I found him a convincing witness but also because sensible and competent consultants should obviously do so; it is almost a matter of simple common sense that for a prestigious building on a waterfront in a major city, one would want to be extremely confident that these steps and seats would not start cracking or otherwise failing because of some even arguable basis a somewhat lower figure for concrete cover, by some strict or academic application of one or other British Standard, might be said to apply. There has been no suggestion by any of the experts that the deployment of concrete cover of 30 mm or 35 mm would or would necessarily cost any more than cover for 25 mm. There is no cost basis therefore for justifying the lower amount of cover.

BS 8500 was a requirement called for by the Specification produced by Buro Happold for in situ concrete. The specification tabulated external concrete cover for concrete cast in situ as 50 mm. Mr Wasilewski’s view on this (as agreed in the Joint Statement - Paragraph 1.5.5) was that, although Buro Happold did not specify cover for pre-cast concrete, the standards referred to in the in situ concrete specification are a useful guide to the necessary characteristics and the foreseeable performance of the pre-cast concrete elements. This chimes with common sense, although one must bear in mind that precast concrete is often better prepared, manufactured as it is usually in factory conditions. Buro Happold also produced another specification entitled Building Envelope, Stone Faced Precast Concrete Panels, which, although most of it could not relate to the seats and steps in the amphitheatres, does also refer to stairs and stones used for steps. This specification refers to BS8110 and it might be the case that this was intended to apply to the steps and seats (although even that is not clear).

BS 8110 dictates that the amount of concrete cover for reinforcement depends upon the exposure conditions described in BS8500-1 and on the characteristics of the concrete. BS8500-1 identifies five exposure classes of which three are relevant: XD (reinforced concrete subject to contact with water containing chlorides (for instance de-icing salts) other than from seawater), XS (reinforced concrete subject to contact with seawater or air carrying salt originating from seawater) and XF (concrete subject to freeze/store cycles whilst wet). These various classes were as follows (in tabular form), with the right hand box being headed "Informative examples applicable in the United Kingdom":

“Corrosion induced by chlorides other than from seawater (XD classes) (where concrete containing reinforcement…is subject to contact with water containing chlorides, including de-icing salts, from sources other than from seawater)

XD1	Moderate humidity	Concrete surfaces exposed to airborne chlorides… Parts of structures exposed to occasional or slight chlorides condition
XD2	Wet, rarely dry	Reinforced and prestressed concrete surfaces totally immersed in water containing chlorides…
XD3	Cyclic wet and dry	Reinforced and prestressed concrete walls and structure supports… Reinforced pavements car park slabs

Corrosion induced by chlorides from seawater (XS classes). (Where concrete containing reinforcement…is subject to contact with chlorides from seawater or air carrying salt originating from seawater)

XS1	Exposed to airborne salt but not in direct contact with sea water	External reinforced and prestressed concrete surfaces in coastal areas
XS2	Permanently submerged	Reinforced and prestressed concrete surfaces completely submerged and remaining saturated; e.g. concrete below mid-tide level
XS3	Tidal, splash and spray zones	Reinforced and prestressed concrete surfaces in the upper tidal zones and the splash and spray zones [Note E: Exposure XS3 covers a range of conditions. The most extreme conditions are indeed spray zones. The least extreme is in the tidal zone where conditions can be similar to those in XS2. The recommendations given in this annex take into account the most extreme conditions within this class.]

Freeze-thaw attack

Where concrete is exposed to significant attack by freeze-thaw cycles whilst wet)

XF1	Moderate water saturation without de-icing agent	Vertical concrete surfaces such as facades and columns Non-vertical concrete surfaces not highly saturated, and to rain or water
XF2	Moderate water saturation with de-icing agent	Concrete surfaces such as parts of bridges, which would otherwise be classified as XF1, but which are exposed to de-icing salt either directly or as spray or run-off
XF3	High water saturation, without de-icing agent	Horizontal concrete surfaces, such as parts of buildings, where water accumulates and which are exposed to freezing…
XF4	High water saturation, with de-icing agent or seawater	Horizontal concrete surfaces such as roads and pavements, exposed to freezing and to de-icing salt either directly or as spray or run-off Concrete surfaces subjected to frequent splashing with water containing de-icing agent and exposed to freezing

Tables A4 and A5 in BS8500 identify covers for reinforcement and concrete mixes against, amongst others, the XD and XS classes assuming an intended working life of at least 50 years. Mr Tutt said that, had proper consideration being given in effect by the consultants, such consideration should have arrived at the following classes for the northern amphitheatre: XD3, between XS1 and XS3 and XF4 and for the southern amphitheatre: XD3, XS1 and XF4. He assumes that de-icing salt would be used on the steps and seats largely because they are open to the public, it rains and snows in Liverpool and the surfaces are therefore prone to ice in winter. That was and is a legitimate assumption because de-icing salts are the most common and by far the cheapest way of de-icing; certain it is that neither AEW nor any other consultant suggested or hinted at any material time that such a common method of de-icing should not be used. If the durability of the concrete was dependent on the Museum not ever using de-icing salts, one would have expected that to have been raised with the Museum and, if that assumption was to be adopted and accepted by the Museum, AEW should have secured that it found its way into one of the construction contract specifications.

There was much discussion between the experts in the giving of their evidence whether the two other methods of de-icing could or should reasonably have been anticipated to have been used. The first (which was most strenuously proposed by the defending parties’ experts) was the use of propylene glycol which is primarily used to de-ice aeroplanes. I unequivocally reject that this method was feasible or would have been considered or foreseen by any sensible contractor, architect or even engineer as an appropriate way of de-icing steps and seats on a building such as this. It was in effect accepted that it has never been used to de-ice buildings such as this; it would undoubtedly be very much more expensive than the use of ordinary de-icing salt (which is readily available). No quotation and no literature were proffered by the experts to support its use.

The second method involved the wholly impractical one of the use of manually operated hot air blowers. Whilst of course the application of hot air to ice will melt the ice, it would need a number of workers to be constantly available for up to 4/5 months a year, particularly in cold or snowy conditions because freezing conditions will re-freeze. Another related suggestion was that the access to the building provided by the north and south amphitheatres should be curtailed during cold weather. However, that would restrict the use of the building and was not the basis on which it was designed. There was some dispute as to the extent to which the amphitheatres formed part of the fire exit arrangements from the other internal parts of the Museum. It is clear however, and I find, as a matter of fact based on all the evidence that they were part of such arrangements.

It is not therefore that there are no other theoretical ways of dealing with ice in the amphitheatres but it is the case that there are no practical, sensible and well known ways of dealing with it other than using ordinary de-icing salt. The reality is that neither AEW nor anyone else on the consultants’ or the Contractor’s side gave any thought at all to this important aspect of design. They should all have done so.

The experts have agreed in effect that, if the consultants had thought about the reinforced concrete cover requirements for the seats and steps, they would reasonably have had regard to another British Standard BS EN 13369, entitled, "Common rules for pre-cast products" which in turn directs the reader to BS EN 206-1: 2000 which has similar "exposure classes" to those set out in BS 8500:

“Corrosion induced by chlorides other than from seawater

Where concrete containing reinforcement…is subject to contact with water containing chlorides, including de-icing salts, from sources other than from seawater)

XD1	Moderate humidity	Concrete surfaces exposed to airborne chlorides
XD2	Wet, rarely dry	Swimming pools. Concrete exposed to industrial waters containing chlorides …
XD3	Cyclic wet and dry	Pavements. Car park slabs

Corrosion induced by chlorides from seawater

Where concrete containing reinforcement…is subject to contact with chlorides from seawater or air carrying salt originating from seawater)

XS1	Exposed to airborne salt but not in direct contact with sea water	Structures near to or on the coast
XS2	Permanently submerged	Parts of marine structures
XS3	Tidal, splash and spray zones	Parts of marine structures

Freeze-thaw attack (XS classes) (where concrete is exposed to significant attack from freeze-thaw cycles whilst wet)

XF1	Moderate water saturation without de-icing agent	Vertical concrete surfaces…exposed to rain and freezing
XF2	Moderate water saturation with de-icing agent	Vertical concrete surfaces of road structures exposed to freezing and airborne de-icing agents
XF3	High water saturation without de-icing agent	Concrete surfaces subjected to frequent splashing with water and exposed to freezing Horizontal concrete surfaces exposed to rain and freezing
XF4	High water saturation with de-icing agent or seawater	…Concrete surfaces subjected to direct spray containing de-icing agents and freezing. Splash zones of marine structures exposed to freezing

Both BS 8500 and BS EN 13369/ BS EN 206-1: 2000 have slightly different classifications and different cover requirements. There is no doubt however that XD3 (where de-icing salts are foreseeably to be used) in both Standards would be applicable because the steps and seats will cyclically be wet and dry from rain and snow and, based on my findings above, there would be salt used for de-icing them in winter. It is also foreseeable that de-icing salts could be used by the City Council on the roads and pavements in the immediate areas around the amphitheatres so further salt could be walked into the concrete of the steps and seats. BS 8500 would call for 45 mm reinforced concrete cover for both the southern and amphitheatres with an XD3 classification. The other Standards would call for 30 mm cover for “slab” bars and 35mm for "other" bars.

There was a major disagreement between the experts about the XS classification with Mr Wasilewski and Dr Roberts saying that XS1 was the appropriate classification under either Standard whilst Mr Tutt was of the view that something between XS1 and XS3 applied to the northern amphitheatre and XS1 to the southern. The argument revolved around in effect whether or not the northern amphitheatre could be considered as being within the splash and spray zones. The Mersey which is tidal and is about 26 m plus from the side of the northern amphitheatre. In Mr Tutt’s judgment, this is within the spray zone because when the tidal and weather conditions are at their worst there will be sea spray from the tidal river which will splash or otherwise spread over or to the seats and steps. Whilst one can not suggest that the northern amphitheatre is a marine structure (as referred to in BS EN 206-1: 2000), it is at least sensibly arguable that the seats and steps comprise reinforced concrete surfaces within the splash and spray zone.

Whilst none of the experts suggested that these British Standards are to be considered as laying down absolute requirements because professional judgement needs to be exercised, it is my view, based on the evidence principally of Mr Tutt, that competent consultants would always err on the side of caution particularly with a building like the Museum and one in this particular location. XS1 would call for 25 mm cover whilst XS3 would require 35 mm or more.

The real problem here was that AEW simply never applied its mind to assessing, let alone understanding, what the requirements for these steps and seats should be. If it had done so, I am satisfied that, if it had acted competently and with reasonable care, it would have specified at least a minimum life of 50 years and that there should be specification requirements which erred on the side of caution to secure that minimum life. Thereafter, whether those requirements were drawn out by it (as being part of the architectural work) or they had been drawn up on a delegated basis by Buro Happold, a minimum cover of 30 mm and probably 35mm should and would have been called for. This reflects the XD3, XF4 and XS1 to XS3 exposure classifications which would and should have been adopted. AEW simply failed to exercise any reasonable care and either it failed to design and specify or secure by co-ordination a design and specification from others which would provide an effective minimum 50 year life.

As a matter of fact is clear that none of the seats and steps have been designed or constructed with significantly more than 25 mm cover. Indeed there is evidence which I accept that a significant quantity (about 10%) of the steps and seats did not even meet the 25 mm cover. There were two surveys done, one by a company called Celtest and another by SEP. There is broad acceptance that the Celtest cover-meter survey is reasonably reliable and demonstrates a much smaller percentage of units with less than 25 mm cover. I accept that the SEP survey has not been demonstrated to be necessarily reliable because there is no evidence either that this was an effectively accredited organisation or as to how the survey was done and with what equipment. It provides however some corroboration for the Celtest survey. That demonstrated that up to about 10% of the units did not even have the 25 mm cover.

A considerable time was spent at trial particularly by AEW’s Counsel by way of cross-examination to determine how it even came about that 25 mm cover was selected. There was a document management system to which all the consultants had access whereby, amongst other things, the Contractor could and did file drawings and calculations either from itself or Rowecast for approval. It was Rowecast which came up with the suggestion that 25 mm cover should be provided. However, it all started with a Technical Query TQ 1382 dated 24 March 2009 from the Contractor addressed to AEW and Buro Happold which asked in relation to the amphitheatres stepped units:

“1.

Please advise specification for reinforcement for step units

2.

Please advise level of cover to reinforcement…”

Prompted by Mr Rogers of AEW who wrote "BH response requested", Buro Happold replied on the 4Projects system that it assumed that the "reinforcement requirements will be detailed by the manufacturer as these are pre-cast step units". In my judgment, this involved an unjustified "passing of the buck” certainly by AEW and probably Buro Happold as well. The reason for this conclusion is that there was little or nothing in the building contract documentation which identified by reference to what standards or criteria the "manufacturer" (Rowecast) would produce its detailed design. Those were then followed by a Request for Approval from the Contractor in respect of the proposed specification by Rowecast which identified for instance what the concrete mix would be for these steps and seats and simply said "cover to reinforcement to suit aggressive exposure condition". Thereafter by a Request for Approval dated 7 July 2009, the Contractor sought approval for Rowecast’s ramp and amphitheatre drawings. There was some coming and going on and these drawings were revised on several occasions with a request for final approval relating to Revision 3 addressed to both AEW and Buro Happold on 4 August 2009. Although the hard copy in the court papers needs a magnifying glass to identify it, the concrete cover was identified in the "Notes" as 25 mm cover. It is clear from disclosed e-mails that AEW (in particular Mr Rogers) regarded the whole design exercise as one for the Contractor and Rowecast; for instance, an e-mail on 5 August 2009 from him to Mr Saha of AEW said:

“It is Rowecast/PGT/BWSS design so don't get into providing solutions. You will run out of time – v quickly."

There was belatedly, indeed after the close of evidence, an application by the Museum to re-amend the Particulars of Claim to extend in so far as it was necessary the complaint about gaps to the slabs on the terraces above, abutting and behind the upper levels of seats and seats. There is no issue in reality that there were gaps of about 10 mm or more to the slabs on the terraces. The application is opposed by AEW on the basis that it is a very late amendment and that the cross-examination, defence and contribution proceedings were conducted at trial on the basis that the complaints about gaps in the terrace slabs were not pleaded.

There is undoubtedly authority for the proposition that the court should generally be reluctant to allow a very late amendment and that “a heavy onus lies on the party seeking to make a very late amendment" (for instance CD Court of Appeal case Swain-Mason v Mills & Reeve LLP [2011] EWCA Civ 14.

It is therefore necessary to consider the original Amended Particulars of Claim:

The reality is that it does not particularly matter whether permission to amend is given or not because, as I find later in this judgement, the terrace slabs will in practice have to be taken up to enable the remedial works to the steps and seats to be done and then to be re-laid to make them compatible with the 5 mm or less gaps which are undoubtedly justified as part of the remedial works attributable to the negligence relating simply to the steps and seats.

I have little or no doubt that the Defendant had a very good idea that the pleading in the Amended Particulars of Claim was always intended to cover complaints about excessive gaps to the terraces. The breach in Paragraph 49.12 specifically related to "Steps and Terraces"; the quantum clearly was intended to relate to the Terraces also. If one was construing the Amended Particulars of Claim, one would in any event probably say that a case was sufficiently pleaded in relation to gaps in the slabs on the Terraces. Therefore, the amendment is clarificatory only. I can not see any prejudice at all about this. The experts in the different disciplines have looked at gaps as an issue relating to the seats, slabs and terraces. If AEW had succeeded in avoiding liability in respect of the gap problem to the seats and steps, that success was extended to the terraces. It is the same issue. I can not see that AEW or its legal team would have done anything different to that which they did during the course of this case. Although the application was very late, it had been signposted on the first day of the trial after Mr Reed QC raised the point.

I am fully satisfied that AEW failed to discharge their duties in relation to the steps and seats (and terraces) which were architectural features and within their contractual sphere of design responsibility. It failed to design or procure the design of the steps and seats. Even though reinforcement detailing and placement was the contractual responsibility of the Contractor, it was up to AEW to provide or procure the provision of the requisite design criteria to enable the Contractor to design effectively. It also failed, having delegated its responsibilities at least in part in relation to the approval of the Rowecast drawings to Buro Happold, to ensure that Buro Happold had actually applied its mind to the important question as to whether those drawings, particularly in relation to concrete cover, provided sufficient to secure that steps and seats as designed would provide a minimum life of 50 years. In these respects, AEW not only failed to do what it was employed to do but I am satisfied and find that it failed to exercise any let alone reasonable care in relation to the whole issue of concrete cover.

The Contractor is not liable in relation to the geometry of the steps and seats. That has now been conceded by AEW.

In relation to the gaps, AEW suggests that the design of the steps and seats was part of the works which the Contractor was required to design. This is, simply, wrong. The construction contract identifies those parts of the Works which the Contractor was required to design or have design involvement with as: "steelwork connections, reinforcement placement & scheduling, general glazing & curtain walling, roof cladding, fixing wind posts, structural glass and glazing". This is described in the contract as the "Contractor’s Designed Portion" and it is simply in relation to those works that the Contractor has any design responsibility. There is nothing in the construction contract that suggest any of the words used in this description was intended to encompass the steps and seats, other than in relation to “reinforcement placing and scheduling”; that phrase can not and does not encompass the location and sizing of gaps between the units. That conclusion follows on not just from the words of the phrase but also because the sizing and location of gaps between the steps and seats impinges upon the aesthetics as well as on drainage requirements in relation to rainwater (none of which were the responsibility, design wise, of the Contractor). Sadly, the fact that from early 2009 if not before onwards AEW seemed to have believed that it had no responsibility for any aspect of the design relating to the steps and seats may well explain why this part of the work went so seriously wrong.

It is difficult to criticise the Contractor for putting forward the 10 mm gap because no gap was specified by AEW and I can only presume that it was put forward by Rowecast through the Contractor as a suggestion for AEW to accept or reject as the case may be. I can not say on the evidence that the Contractor was in breach of the construction contract for putting this forward because the size of the gap was not part of it is design obligation. If it had been, I would be in no doubt that the Contractor was in breach because it would then carelessly have put forward an excessive gap.

What actually happened was that Rowecast through the Contractor submitted drawings in the summer of 2009 which showed, at least in places, gaps of 10 mm which AEW saw and in effect approved; certain it is that it failed to disapprove. The only other complaint maintained by AEW against the Contractor is that it fitted the step and seat units in many places obviously with more than 10 mm. Although doubtless as a matter of workmanship there would be some allowable tolerance on the gap of 10 mm, it is undoubtedly the case that the Contractor was in breach of contract for failing to fit the units even within a reasonable tolerance in a significant number of cases.

In my judgment, the Contractor was also in breach of its construction contract with the Museum with regard to concrete cover for the reinforcement in the step and seat units not only because it or its sub-contractor failed even to comply in a not insignificant number of instances with the 25 mm cover requirement but also because it failed to exercise reasonable care and skill in designing or completing the design of the reinforcement in the seat and step units. Material clauses of the construction contract are as follows:

“2.1.2

For the purpose of so carrying out and completing the Works, the Contractor shall, in accordance with the Contract Drawings and the Specification/Schedules of Work where and to the extent that the same are relevant, complete the design for the Contractor’s Designed Portion including materials and goods and workmanship to be used in the construction of that Portion so far as not described or stated in the Employer’s Requirements or Contractor’s Proposals…

2.7.1

Insofar as the design of the Contractor’s Designed Portion is comprised in the Contractor’s Proposal and in what the Contractor is to complete under clause 2.1.2 and in accordance with the Employer’s Requirements and the Conditions…the Contractor shall have in respect of any defect or insufficiency in such design the like liability of the Employer, whether under statute or otherwise, as with an architect or, as the case may be, other appropriate professional designer holding himself out as a competent to take on work for such design who, acting independently under a separate contract with the Employer, had supplied such design for or in connection with works to be carried out and completed by a building contractor not being the supplier of the design.

There being nothing in the Employer’s Requirements or other construction contract documents which clearly spelt out either what concrete cover was to be provided or specific or express criteria against which the concrete cover should be determined for the steps and seats, it was incumbent on the Contractor to complete the design which it chose to do via its sub-contractor, Rowecast; it needed to do this with the reasonable care and skill called for effectively in Clause 2.7.1. Between them, they chose 25 mm cover for the reinforcement and proffered that for approval to AEW and Buro Happold. In my judgment, that was a careless and negligent proposal in effect for the same reasons as AEW has been adjudged negligent. Although to be fair to the Contractor it sought a specification for the amount of cover (see above), it took upon itself the job of specifying the cover itself and it was in that sense "completing" the design.

Liability is admitted by AEW in respect of the SAS ceilings.

In relation to the Armstrong ceilings, Mr Jowett’s evidence (primarily set out in his report at paragraph 5.2) was not seriously challenged and Mr Pepper was entirely unconvincing. Mr Pepper apparently prior to giving evidence had not given any thought to responsibility for what had clearly gone wrong with the Armstrong ceilings. He did however confirm that there were numerous workmanship defects and that the ceilings were not installed in accordance with Armstrong’s requirements.

I prefer and accept Mr Jowett’s evidence. These ceilings had not been installed properly or carefully because the edge tiles did not have any Armstrong support; instead they rested on the lighting track, which must have come about because the ERCO lighting track had been integrated within the ceilings support grid without any attempt being made to adjust the ceiling grid dimensions so that a concealed edge support could be incorporated. Furthermore, in the Armstrong ceilings in the lobbies, the tiles were clipped to hold down onto the ceiling grid using only relatively weak proprietary spring clips which were insufficient to accommodate differences in air pressure between the lobbies themselves and the ceiling voids when doors are opened. The first deficiency resulted in there being no support on one side of the tiles and the second deficiency led to the tiles in the lobbies becoming dislodged as the clips could not hold the tiles in place. These deficiencies are obviously dangerous ones in that falling tiles could injure pedestrians below.

I am satisfied that no competent architect exercising reasonable care and skill could, should or would have allowed these deficiencies to be incorporated or remain in place. There are here essentially at least two failings, the first being a design and coordination failure on the part of AEW in failing to appreciate that that which was being proposed was inadequate and unsafe and the second being a failure to pick up the widespread deficiencies in its periodic inspections of the ceiling works. Although the point was hardly argued in closing by AEW’s Counsel, cross-examination of Mr Jowett had proceeded on the basis that in effect because the ceiling installations were and would have been done over a relatively short period of time and even a competent architect might well have missed the otherwise very obvious deficiencies. This case was not ultimately clearly supported by Mr Pepper who was reduced to suggesting that one could not expect an architect inspecting the ceiling works to have noticed anything from ground level, bearing in mind that the ceiling tiles were some distance from the ground. I have no doubt that any competent architect should have made arrangements to inspect the ceiling tiles, albeit of course not every square metre thereof but such an architect should have inspected from time to time to see not only broadly what was being installed and how it was being installed but also to inspect each ceiling. Mr Pepper’s point about the ceilings being too high is simply a bad one because architects with a responsibility to inspect with reasonable care must put themselves in a position (physically) where they can inspect. If that means they have to climb a scaffold tower or a ladder or even use binoculars, that is what they have to do. However, he accepted in evidence that a competent architect should inspect the ceiling tiles from whatever distance was necessary to enable him or her to see that they were being properly erected; when given the opportunity to reconcile this with his other evidence that the inadequacies could not have been seen from the ground, he merely said that the two propositions were not "easily reconciled".

I am satisfied that, if AEW had inspected, carefully or at all, the Armstrong ceilings, it would immediately have seen that they were being installed carelessly and in a potentially dangerous way. If it had done, carefully or at all, any design coordination work, they would have seen that what was being proposed would produce an unsuitable installation and a potentially dangerous one. There is no evidence to suggest that AEW did inspect these ceilings at all and, indeed, the fact that the ceilings were extensively defective suggests to the contrary that it probably did not inspect at all. It is common ground that there was plenty of time to inspect because the ceiling works were done over a period of weeks.

It follows that liability in relation to the Armstrong ceilings has been established on a balance of probabilities.

It is and was extremely unfortunate that there was until belatedly in the final throes of the trial no agreement at all on the numerous heads of quantum. Even after the quantum experts at the Court’s urging produced a second joint statement, there remains little that has been agreed. For instance in relation to the 22 items applicable to the steps and seats there is agreement only on three items.

AEW’s Counsel have repeatedly and tenaciously put forward an assertion that, because (as they argue) there has been insufficient disclosure on quantum on the part of the Museum, the Museum’s quantum case is fatally flawed. They put before the court correspondence between the solicitors going back for many months. I am by no means convinced that reference to what was said or requested historically in this litigation helps towards any resolution of quantum issues. A detailed and lengthy Request for Further Information was served on 11 January 2012 by AEW’s solicitors on the Museum; this ran to 39 pages and Requests 133 to 143 addressed quantum issues. No order was made by the Court ordering these to be answered. In October 2012, the Claimant sought to answer the quantum requests in some detail with some three files worth of supporting documents being provided. There was little by way of real complaint thereafter from AEW’s solicitors either about the adequacy of that Further Information thereafter or indeed in relation to disclosure, although there was some complaint that the Claimant was slow in identifying the name of its quantum experts. AEW’s solicitors did write on 19 November 2012 referring to the fact that various of the particularised claims were not supported by invoices or were otherwise not substantiated but there was no hint or suggestion that further disclosure was sought. The witness statements were not to be exchanged for some four months thereafter. On 4 February 2013 AEW’s solicitors again said that the Museum had failed "to fully substantiate its quantum claim". On 8 February 2012 the Museum’s solicitors did provide some further substantiation.

However on 19 April 2013 the Claimant applied to adduce further factual evidence which related to quantum and in particular further witness statements from Mr Matley and Ms Granville. This was dealt with at the beginning of the trial and was not opposed by AEW or the Contractor. Essentially, AEW’s Counsel argue that the Museum has not provided all the requisite documentation necessary to prove its quantum, in relation both to historical costs and to future in-house or management costs and in any event its quantum is undermined by the absence of such documentation.

I have however formed a strong view that in particular Ms Granville’s evidence on quantum is reliable and, even if not supported by every conceivable contemporaneous document that might otherwise have been disclosed, largely probative, particularly supported as it was by other witness evidence and by expert evidence.

The primary remedial works are yet to be done. It follows from my earlier findings that the geometry problem cannot readily be rectified simply by resorting to AEW’s designs. It is clear that all the step and seat units need to be replaced because the reinforcement cover is insufficient to provide a 50 year life; they need to be taken away and disposed of and new units provided. All those units would in any event (as is now accepted by all experts) have had to be taken up not only because the gaps were too wide but also to determine whether there was insufficient cover to the reinforcement on those parts of the units (such as the undersides) which could not be checked in situ. As all the units have to be replaced in any event, no such checking needs to be done because in effect they are all condemned by reason of a clear under-allowance in the design for concrete cover. This disposes of a number of arguments such as whether some of the units could be set aside for re-use and could be stored on some temporary site close to the Museum; I would have found in relation to this latter issue that it was not safe or reasonable to assume that there would be an appropriate storage area at a realistic cost (if at all) close to the Museum.

I next turn to the scope of the remedial works and, on analysis, there is little difference between the parties. Mr Jowett has recommended that, assuming that they all need to be replaced, all the units should be stair-shaped but with step units laid on the seat units where steps are currently located. This is different to what is currently there which has larger seat units and stairs on stairs but the Jowett scheme will produce something which looks identical to what AEW and its Danish predecessor planned and for which planning permission was obtained. There will have to be specially designed, manufactured bevelled and chamfered units at the junction line to ensure a symmetrical and non-clashing fit. Mr Jowett explained in a convincing way particularly by way of oral evidence why this was a sensible and reasonable solution; a primary reason was that the use of a single basic double height unit similar in size to the current seating units would engender a greater chance of securing an effective, simple and readily achievable mitred valley intersection between the step and seat areas. I accept that his recommendation is a reasonable one, albeit that there were some relatively technical challenges to his recommendation, such as how one would secure the steps onto the larger units. I am satisfied that these technical problems could be readily overcome as the detailed design is worked out and that the remedial scheme proposed by Mr Jowett is readily achievable. It will be reasonable in achieving what the Museum always expected in relation to these two amphitheatres.

There is one other main difference between the parties in relation to the scope of remedial works, which relates to whether or not a second membrane should be provided in circumstances when it is now accepted on all sides that it was not negligent of AEW to specify or endorse the use of a single membrane in the first place. I have formed a very clear view that it would be sensible and reasonable for a second membrane to be provided and to be recoverable as part of the damages. My reasons are as follows:

There has been an issue as to whether the Amended Particulars of Claim cover the complaint about gaps to the terrace slabs. Irrespective of whether permission to amend was or is granted, it is unavoidable physically that when the steps and seats, particularly those abutting the terraces at the top, and that one or two rows of slabs will have to be removed from the terrace to facilitate the removal and avoid the risk of damage to the slabs themselves. The quantum for the remedial work includes just over £43,000 for re-laying the terrace slabs so that the gaps of 5 mm or less. In my judgment, it is likely that the relaying of those slabs will be required in any event and reasonably so, for two reasons. Aesthetically, it would be inappropriate on this prestigious building for the visual lines formed by the gaps within the steps and seats areas to be twice times (or more) narrower than on the terrace. Secondly, if one or two rows of the terrace slabs have to be taken up in any event, they can and should reasonably be relayed with safe gaps and it would then be wrong to leave the rest of the terrace with unsafe gaps.

In the Second Joint Quantum Statement, the quantum experts have in relation to the actual work to be done agreed a substantial number of figures or figures in relation to Mr Jowett’s scheme. The total for the work exclusive of various additional items and add-ons is £369,002. I will only address those reductions in respect of which issue is taken:

There is agreement between the experts that it is appropriate to make an allowance for preliminaries type items relating to these remedial works; they also agree a one-off cost for mobilisation to and demobilisation from the site of £12,000 and a weekly rate of £3,175. The issues surrounding preliminaries relate to how long these remedial works are going to take. Mr Jowett is of the view that they will take 26 weeks and possibly even more. I found Mr Jowett’s evidence on this convincing. He broke down the 26 weeks plus in to the different components of work and activities and all the periods seem to be reasonable and realistic. He was supported in practical and general terms by Mr Hemmings who saw how matters progressed during the original construction works. He thought that each amphitheatre would take about four months. He was of the view that it would be difficult to have both the North and South amphitheatres being worked on at the same time by reason of the access problems; this was to do with the need to keep the building opened to the public, to maintain deliveries to and from the Museum and to keep access available for the emergency services if required. He particularly referred to what he called "the narrow gap on the south-east corner" in the context that, whilst works were going on to the southern amphitheatre, access would need to be maintained around the northern amphitheatre. I broadly accept the evidence of Mr Jowett, supported as it was by Mr Hemmings, that it would be safe, prudent and reasonable to allow at least 26 weeks. Mr Jowett said that six months will accommodate the remedial works to both amphitheatres. Although there was some other evidence which suggested a longer period and there is undoubtedly a real risk that the works might take longer, 26 weeks is a reasonable allowance. Therefore, damages for preliminaries should be £12,000 for the mobilisation and demobilisation plus 26 weeks times £3,175, namely £94,550.

The next item relates to the site security during the remedial works. There will undoubtedly have to be site security. Not only must the working area to and around the amphitheatres be hoarded but also it will be necessary to ensure that access into the working area and indeed into the Museum itself from the construction site can not occur during the day, at weekends or at night. Apart from a vandalism risk, it must be borne in mind that the execution of these remedial works may well attract criminal interest not only with a view to pilfering from the construction site but also theft from the Museum through the construction site areas. Mr Fitch in his first report based his assessment on the allowance made by the Museum in relation to site security which covered the period from about Christmas 2009 through to June 2011 whilst little or no work was done on the amphitheatres albeit that it was boarded up and the site security was provided. The real issue on analysis between the quantum experts relates to whether or not the preliminaries allowance is sufficient, given that the remedial works contractor will have to provide some hoarding around the areas whilst remedial works are going on. I have formed the view that there is something in what both Mr Fitch on the one hand and Mr Matthews and Mr Raybould on the other say. The allowance endorsed by Mr Fitch is £5,991.53 a month but that assumes that the remedial works contractor would not be providing any hoarding. There will have to be additional security over and above what a remedial works contractor would ordinarily be expected to provide as part of its preliminaries. It would be reasonable for the Museum to retain additional security guards and to call for an enhanced level of security fencing over and above what the remedial works contractor would ordinarily provide. I have formed the view that a reasonable additional allowance would equate to £3,000 a month which, given that the remedial works after 26 weeks or six months, would produce a proper allowance of £18,000 in total.

There then follow three allowances for "Design Reserve", "Contingency" and for "design/local authority and building control fees", for which Mr Fitch allowed 10%, 10% and 15% respectively. There were differences between the experts on this with Mr Matthews allowing 5 to 7.5%, , 5% and a lump sum of £50,000 respectively and Mr Raybould allowing 0%, £10,000 and £27,900 respectively, although some of these are not absolutely directly comparable. I have formed the view that it is legitimate to allow a "design reserve", which essentially involves the likely and foreseeable additional costs which will emerge when the design is worked up in detail. The design at the most is at its initial stages and is in the form of a conceptual design which, as indicated above, is a reasonable and realistic one. However, as the design is developed and as is common, it is probable that additional detail will emerge which will dictate likely additional cost. Without intending in any way to adopt a judgment of Solomon, I take 7½% as a reasonable and fair allowance, coming as it does at Mr Matthews’ upper end and at the mid-point between his lower range and Mr Fitch’s 10%.

In relation to contingency, the quantum experts in their first joint statement agreed that it was usual and appropriate to make an allowance for unforeseen issues, as opposed to design developments or client’s changes of mind. Certain it is that contingency is regularly allowed by quantity surveyors in estimating future costs on the basis that the unforeseen often happens. In this case, an allowance for contingency is particularly apposite for a number of reasons. The first is that there has been much local publicity about the problems associated with the Museum and any remedial works contractors, even if presented with fully detailed designs and specifications which are eminently priceable, will be aware that the Museum will be, wholly understandably, an exacting client which will be determined to ensure that the previous mistakes are not repeated. It is therefore foreseeable that there may well be a premium to pay for that type of consideration even though judged by pricing estimates beforehand the tender costs should be less. Secondly, these works will be carried out to and around a functioning museum which is open to the public and is a landmark; there will have to be additional liaison and not just with the local authority and building control but also with the Museum to ensure the smooth running of and access to the Museum. That is going to add to the construction costs. The third factor involves the risk that the construction period will exceed the 26 weeks upon which I have based the preliminaries assessment; although it is not certain, there is undoubtedly that risk and contractors may well price that risk even if only a 26 week period is specified. I have formed the view that an appropriate allowance is much closer to Mr Fitch than to either Mr Matthews or Mr Raybould. I have therefore allowed a reasonable allowance of 8%.

The final allowance for design/local authority and building control fees involved fee costs associated with the design of the remedial scheme and the approval of the design of her immediate scheme. It was agreed in the first quantum joint statement that it was appropriate to make an allowance for local authority building control fees as such. Mr Raybould allowed £5,000 for building control fees.

The real area of dispute here revolves around the extent to which the Museum would be acting reasonably and sensibly in retaining a professional design team. In my judgment, there can be no rational or reasonable alternative other than it would be wholly reasonable and sensible for the Museum to retain architects and engineers although the extent to which some of their functions might overlap is unclear. The defending parties’ experts did themselves a disservice and undermined their credibility by suggesting as realistic the need to retain simply one engineer to perform all the relevant functions and, indeed, if the remedial works contract was let as a "design and build" contract, the client engineer would at best have a checking function for the contractor’s engineers. First, it is important and reasonable that the Museum, which has already experienced serious problems as a result of the negligence of AEW, retains direct control and influence over the designers. Secondly, there are extensive architectural and engineering functions to be performed. Thirdly, it is vital that there is close liaison between the consultants and the client, bearing in mind not only the history but the need to maintain the running of the Museum. Fourthly, it is not wholly irrelevant to that the original project was fully staffed by independent consultants and there is no hint or suggestion in the contemporaneous documents that anyone suggested that the Museum was overstaffed by its consultants. I have no hesitation in finding an allowance of 15% is reasonable and realistic.

In addition to this, it is common ground between Mr Matthews and Mr Fitch that because the remedial work costs on which they had been working were prepared at prices prevailing some months ago an inflation allowance of 2.3% is reasonable and realistic. I agree.

The next item is agreed and relates to the money paid and payable to the Contractor in relation to CVI 340 which called, by way of variation, for the construction of what Ms Granville called the “abomination", namely the plinth or upstand over the valley between the steps and seats. This was a waste of money in that it was not a proper solution and it was not and never would have been approved. The quantum is agreed at £67,936.96.

There is then in similar vein the removal of the offending plinth which was carried out by the Contractor in 2010. Again for similar reasons, this is and must be recoverable and the quantum is agreed in the sum of £12,948.27.

There is a claim for the cost of additional security attributable to the delay following the construction of the plinth. The Contractor retained G4S to provide security during this period. The first issue relates to what caused the delay between the end of 2009 and the date when the building was handed over to the Museum in July 2011. The evidence points very strongly to there only being one effective and certainly dominant cause of the delay, namely the problems with the steps and seats. Mr Matley gave some clear evidence about this, as did others. There was only one other factor which might be thought to have come into play and this had to do with the combined heat and power system which was finally sorted out by about October 2010; however, the building had been tested and commissioned on the basis of a temporary power system that was running certainly by the time that the inside of the building itself was handed over to the Museum in about February 2010. It is therefore unlikely that the sorting out of the CHP system critically delayed the works. From 18 January 2010 until July 2011, I find that the cause of the delay was the negligence of AEW with regard to the geometry of the steps and seats and the execution of the CVI 340 work. The suspension of work which was reasonable and necessary in all the circumstances arose as a result of that negligence and therefore AEW is responsible for and caused the subsequent delay. There has been no suggestion that the Museum caused any delay during this period or indeed that the Contractor was to blame.

There is unchallenged evidence that £95,709.67 has been paid by the Contractor to G4S with regard to these security services and there is no suggestion that it was unreasonable or unnecessary to deploy these services or that the sums paid out by the Contractor were excessive. The sum has not yet been paid by the Museum to the Contractor because there is an outstanding dispute between the Contractor and the Museum under the construction contract as to whether or not the Contractor is entitled to an extension of time and to financial reimbursement in respect of the period of delay to which these security service costs apply. The only issue is whether or not justice is best served by ordering that this sum should be paid or payable now as damages or by ordering AEW in effect to indemnify the Museum against any liability which it might have to the Contractor in relation to such sum.

There is an undoubted logistic and forensic problem. Little or no evidence was advanced, either by way of witness or expert evidence or by way of documentary disclosure justifying the Contractor’s financial entitlement to this sum under the construction contract. I pressed Mr Lee at several stages in relation to such claims to identify whether his clients were prepared in effect to limit themselves to that which had been claimed or at least that which was identified by the Museum in its pleading as having been claimed. On instructions, he was reluctant to do so. There is a substantial claim for extension of time and related loss and expense by the Contractor and no part of the evidence supporting it was deployed by the Contractor in this case and, so far as I can ascertain, no or limited disclosure in relation thereto had been provided.

Although I have made findings (see above) that the delay from January 2010 to July 2011 was attributable to and caused by the negligence of AEW, it may not automatically follow that the Contractor’s claims will succeed at least in full or for the full period. It may for instance be the case (and I only speculate) that some of these security costs might be attributable to whatever the problems were with the CHP system. Another possible area of issue might relate to the recoverability under Clause 26 of the construction contract conditions of all or part of such sums; this clause permits the recovery of loss and expense caused by certain matters including Architect’s instructions and postponements but there is a condition precedent that the application for reimbursement must be made "as soon as it has become, or should reasonably have become, apparent to [the Contractor] that the regular progress of the Works…has been or was likely to be affected". It may be, and there simply has been no evidence one way or the other, that this condition has not been complied with. It remains the case however that there has been no resolution between the Contractor and the Museum in relation to such claims.

Reference has been made to various authorities which, however, do not lay down any great principle. I would suggest the following:

One of the real difficulties here is that it is common ground that there is an arbitration agreement between the Contractor and the Museum and, understandably, the Contractor is not prepared to agree to bring any disputes relating to delay and delay related compensation into court; it is of course contractually entitled to take this stance. If there was such agreement, I would have been minded to postpone the assessment of delay related losses said to have been incurred by the Contractor, on the basis that AEW could then participate if it so wished in the requisite court proceedings.

It is very difficult for the Court to take an evidential leap and try to assess what these delay related losses are or what the Contractor will prove. In relation to the G4S security costs, I can and do find that they had been incurred and they have been incurred in relation to the January 2010 to July 2011 period where the delay was caused by the negligence of AEW. In the surprising absence however of the requisite evidence from the Contractor in these proceedings to support its delay related claims for this period and in the absence of any argument about its entitlement or disentitlement to delay related compensation, the Court is left in a real difficulty because, whilst it can see that compensation may well be payable by the Museum to the Contractor for the delays caused by AEW, it is insufficiently informed by detailed evidence let alone argument about the scope and extent of such compensation. Whilst the Court could theoretically simply say that the Claimant has not proved its case, that would be wholly unfair and contrary to justice.

In my judgment therefore, this is a case in which the Court should make a declaration in appropriate terms that the Museum should be indemnified by AEW against damages, losses, expenses or cost payable by the Museum to the Contractor by reason of the matters for which it has been found liable in these proceedings. This would not permit the Museum to recover sums which it has otherwise recovered as damages awarded by the Court. In line with normal principle (for instance by the application of the principles laid down in Biggin v Permanite), if the Museum settles with the Contractor, it may well have to establish pursuant to this indemnity arrangement that the settlement was in all the circumstances reasonable.

The next head of loss is "loss and expense incurred by the Contractor" in relation to prolongation. The Museum identified a figure of £171,314 as the claim made by the Contractor in relation to the period January 2010 to July 2011. The Contractor was in these proceedings "coy" about whether such a claim represented its full claim for the period; Mr Lee confirmed on Day 9 of the trial that the claim would be larger. The Contractor did not produce by way of disclosure its accounting and other documents which would identify what its delay and disruption related losses were for this period. For similar reasons to those set out above, this is the case for an appropriate declaration of indemnity.

Survey costs were incurred by the Museum in relation to the problems associated with the steps and seats. Quantum is agreed between the experts and indeed by the parties in the sum of £6,655.

A small item relates to a report prepared by a Mr Bamber on the external steps and terraces, for which £540.80 was invoiced and apparently paid. However, I can find no evidence (other than the invoice from Mr Bamber dated 12 March 2010) which explains what he did. Therefore, I find that this small claim has not been proved.

£41,994.25 is claimed for the installation of site hoarding around the north and south amphitheatres. This figure is agreed as a figure by all experts. This covers the purchase of the hoarding. The only argument here is effectively that the Museum should not have called for the removal of the plinth because it could have remained in place until the required remedial works were carried out and in those circumstances the area could have remained open. It is also suggested by AEW that the hoarding could have been hired. In my judgment it can not begin to be said that it was unreasonable of the Museum to call for the removal of the plinth which, it is accepted, had been put in place as a direct result of the negligence and breach of contract of AEW and of AEW exceeding its authority in instructing that work to be done in the first place. There was no hint or suggestion made by anyone at the time (and certainly there is none in the documentation before the court) that the plinth should not be removed. The Museum had a right to expect that its consultants would come up with a sensible solution within a reasonably short period of time. It was only by the summer of 2011 that it was becoming apparent that no such ready or simple solution would or was going to be provided. Thereafter, the unchallenged evidence from the Museum is that it lacked the funds to embark on the substantial remedial works necessary. It was therefore essential from a health and safety as well as a security standpoint that the north and south amphitheatres should be hoarded so that the public could not gain access into what was a potentially dangerous area with most of the step and seat units around the valley having been removed by the Contractor. So far as I can ascertain, it was never put to the Museum’s witnesses that it was unreasonable to purchase the hoarding or to deploy it and there was no specific evidence that the cost of hiring from 2011 until the time when the works are actually done (presumably now in 2014) would be particularly cheaper than purchasing. In my judgment, this claim has been proved and established and I am satisfied that there was no failure to mitigate.

Another small item relates to an invoice from Adana Construction for removing defective step and terrace units in the sum of £1,553.48. This sum has been paid (on the evidence). It is clear from the confirmation instruction that this work was ordered in May 2011 by or on behalf of the Museum. I infer that this work relates to moving some of the steps and terrace units that had been removed from the amphitheatre by the Contractor and which were getting in the way of Adana who had to move them. This would not have had to have been done if AEW had not been negligent in the first place. There is no dispute on the quantification. The sum should be allowed.

The Museum claims for the fees of an adjudicator, Mr Derek Pye, who was appointed to adjudicate upon a dispute which had arisen between the Contractor and the Museum which broadly related to whether the Contractor had design responsibility in relation to the seats and steps in the amphitheatres. This was obviously a live topic between the Contractor and the Museum, following the problems which had emerged in January 2010. The claim encompasses the fee paid to Mr Pye (exclusive of VAT £19,830.66), £95,831.32 in relation to the Museum’s solicitors fees in connection with the adjudication and £6,630 in respect of related fees of Turner and Townsend. The adjudication was initiated by the Contractor by a Notice of Adjudication dated 20 December 2010. The Contractors sought declaratory relief that the steps and seating did not form part of the Contractor’s Designed Portion under the construction contract, that CVI 340 was a variation and that the Contractor was entitled to instructions to enable it to overcome the problems associated with the steps and seats. Extensive exchanges between the parties have followed the service of the Referral documents by the Contractor with a Response, Reply, Rejoinder, Surrejoinder and various other submissions. Statements from eight witnesses were submitted, there being 15 statements in total. The adjudicator decided the issues of principle in favour of the Contractor and ordered the Museum to be responsible for his fee. The Museum paid this sum.

The main issue between the parties in this case on this item revolves on analysis around reasonable foreseeability and causation linking AEW’s breaches of contract and the adjudication. In simple terms, there would have been no dispute at all between the Contractor and the Museum if AEW had carefully designed or coordinated the design of the steps and seats. But for the breaches of contract and negligence on the part of AEW, the plinth would never have been or had to have been instructed and the works would all have been finished by about the end of 2009; there would have been no suspension of works and there would have been no need for any further instructions to be given to the Contractor. Construction adjudication was by the time of this project very well established and it was reasonably foreseeable that adjudication could be deployed by the Contractor in relation to wide-ranging and different types of dispute including the scope of design responsibility. The Museum was put in the position it was in relation to the adjudication by reason of the defaults of AEW.

The problem here however is arguably more one of causation. The Museum retained competent and experienced construction law solicitors (DWF LLP) in relation to the dispute which was ultimately referred to adjudication. True it is that shortly after the adjudication started DWF wrote to AEW on 23 December 2010, inviting it to cooperate in relation to the adjudication, even assuming it denied responsibility itself; it did write that: "if, in fact, you accept liability, then we respectfully request and require written confirmation of this admission by return". It is clear that the adjudication was keenly fought and, I must assume, that time and costs were not consciously wasted by the Museum and its advisers in fighting the adjudication on a basis that was considered to be unarguable. I must assume that the Museum and its advisers on an intellectually honest basis believed that there was an arguable case that the Museum was in the right, that the Contractor was responsible for the design of the steps and seats and that the Contractor was responsible for sorting out the hiatus that still existed. Essentially, AEW argues that it fought the adjudication knowing that, even if it was successful, it would not recover its costs, that the decision would only have temporary finality and that costs would not be recoverable from the Contractor in subsequent proceedings; Mr Reed QC argues therefore that AEW should not be liable to these costs in circumstances where irrespective of the outcome of the adjudication the Museum would not have recovered its costs, this being a backdoor method of cost recovery.

I have formed the view that these costs are recoverable. If AEW had done its job properly in the first place, it is inconceivable that there would have been any adjudication in relation to the design responsibility of the Contractor because the issue simply would not have arisen: there would have been no problem with the geometry, the reinforcement or the gaps; there would have been no need for any suspension and there would have been no delay attributable to the steps and seats in 2010 and 2011. Adjudication is a fact of life now in construction contracts, albeit that it is not invoked on every project. It was within the bounds of reasonable foreseeability that there could be adjudication in circumstances such as arose here. There was a sufficient causative link between the defaults of AEW and this adjudication. The causative link would only be broken if the Museum had acted unreasonably or if its solicitors had acted negligently in advising the Museum that it had an arguable defence in the adjudication. It has not been suggested that either of these eventualities arose. I therefore consider that this claim is a good one and has been established on the evidence.

Turning to the costs of the solicitors, copious bills and breakdowns have been provided and I infer at the very least that they have been paid by the Museum. However, there was no direct evidence explaining how and why the costs were all attributable to the adjudication and the immediate run up period. Ms Granville gave evidence about these costs and said that, although the solicitors invoices totalled £119,531.32, she had been advised by DWF that this should be reduced by £23,700 in relation to the pursuance of the claim against AEW. However, unsurprisingly, she herself could not explain or justify individual elements. The adjudication process ran from 20 December 2010 through to the issue of the adjudicator’s decision on 21 February 2011. The invoices were as follows:

In the absence of a detailed explanation, the Court must make the best assessment that it can and in so doing it should adopt only the maximum figure which it is safe to infer reflected the reasonable costs, properly incurred in relation to the adjudication. In that context, my best assessment is £53,000 and calculated as follows:

The next related head of costs claimed is Turner and Townsend fees in relation to the adjudication. Although this was claimed in the sum of £17,130, Ms Granville when giving evidence accepted that this needed to be adjusted downwards to £6,630. It is supported by an invoice and relates to 86 hours of work provided by Mr Matley and 16 hours from Mr Wood in relation to what is called “Steps & Terraces adjudication support & expert witness statements”. It is recorded in the adjudicator’s decision that two witness statements were submitted from Mr Matley and one from Mr Hewitt of Turner and Townsend. There is therefore corroborative evidence that this work was done. There is no suggestion that the rate claimed before Mr Matley is unreasonable (at £60 per hour for 86 hours) but there is no evidence as to what Mr Wood was doing. I therefore am satisfied that Mr Matley’s time and rate are justified and related to the adjudication. £5,160 will therefore be allowed.

This claim relates to additional professional fees paid by the Museum to Mace and T&T during the period from January 2010 to July 2011. Mace was the project manager for the project and T&T provided quantity surveyor and contract administrator services. Ms Granville gave the over arching evidence in relation to this claim saying that Mr Lawton and Ms Parker both of Mace and Mr Matley of T&T applied 90% of their time from January to March 2010 and 30% from April 2010 to June 2011, and Mr Hewitt 90% of his time for the earlier period and 10% thereafter in relation to the fallout and problems associated with the steps and seats. She then related these percentages to the relevant Mace and T&T bills for this period and claimed the resulting balance, namely £155,539.30. She based that on her own observations but also on what she had been told by these persons. Save for Ms Parker (who was not required for cross-examination but put in a statement), they were all called as witnesses. The main reason for the delay to the project in 2010 up to mid-2011 was the negligence of AEW. But Mr Matley confirmed in evidence this assessment in relation to his time but confirmed that the 90% assessment of his time dealing with the steps and stairs issue started on about 18 January 2010 following the "abomination" meeting. Mr Hewitt said in evidence that he spent about 50% of his time in the earlier period and slightly less in the later period. Mr Lawton in evidence said that he personally had not made the 90%/30% assessment but he said that he would estimate 75/80% in the earlier period and 25/30% for the later period.

These are clearly broad-brush assessments and one can not criticise the Museum simply for paying the monthly bills from Mace and T&T without calling for a detailed breakdown. It is possible, and indeed, for instance, Mr Matley did accept that his firm did have a time recording system. I am satisfied on all the evidence that it is probable that these four personnel from these two firms spent a considerable amount of time in 2010 and 2011 on the fallout from the steps and seats problems. Work included extensive back checking of designs, liaison with the Contractor in relation to the removal of the plinth and the step and seat units around the valley, advising and liaising with the Museum and its staff about the way forward and the like. I find that the assessments made in evidence by the witnesses who were actually involved are more likely to be reliable than those percentages recorded by Ms Granville.

There is however an area of doubt as to the base figures onto which these percentages should attach. An example is T&T’s invoice for the cost management role (“CM”, effectively Mr Matley) For January 2009 which is £9,000 for "shell and core post contract stage", whilst only £4,500 is identified in relation to the remaining invoices up to June 2011. There is no real explanation for this. In relation to the contract administrator role (“CA”), the T&T invoices to which the claim relates varies between £4,800 and £10,200 a month with no obvious explanation for the difference. On any assessment, it would be prudent to take the lowest figure.

I am wholly satisfied on the evidence that substantial time and cost was expended by the Museum on fees payable to Mace and T&T for professional services in this period dealing with and addressing the problems associated with the steps and seats. It is not possible to do a precise ascertainment but it is possible to do a broad assessment which I set out below:

There can be no doubt, and I find on the clearest evidence, that the Museum necessarily had to deploy staff to deal with, address and accommodate the problems associated with and consequential upon the steps and seats problem which emerged very openly on 18 January 2010. Ms Granville, who was herself intimately involved, identified how much time was spent in these activities by her, the Director of Estates (Mr Williams), the Project Assistant (Ms Green) and the Building Operations Manager (Mr Hemmings). She identified in evidence the pay grades and the salary cost per day for each of these four. I find, and indeed, there can be no doubt, that the time which these individuals spent in addressing the problems associated with the steps and seats would otherwise have been spent on other matters which would doubtless have inured for the benefit of the Museum.

There has been what might be described as essentially a forensic challenge by AEW’s Counsel to what Ms Granville has said about this claim (and indeed what she has said about comparable claims in relation to Museum staff time). The argument suggests that the time assessments are suspect and too vague, and that there is a substantial amount of disclosure such as payroll and possibly diary records which could have been but were not produced by the Museum (pointing to a lack of hard evidence to support the time assessments and indeed the associated payroll costs). I am not impressed with this challenge, broadly for two reasons. The first is that Ms Granville was an impressive, believable and honest witness whose evidence I have no real difficulty in accepting, backed up as it largely was, at least in part, by other witnesses. In any event, she was not cross-examined as to credit and there was no suggestion that she was anything other than honest and competent. Secondly, whilst there may be cases in which the absence of underlying accounting documentation might undermine a party’s quantum case (particularly where it was otherwise suspect), the supposedly missing documents such as payroll records were never sought on disclosure by AEW.

An even more thoughtful argument raised by Mr Reed QC however relates to the inherent recoverability of the payroll cost of employees of a claimant. There was reference to several authorities. In Aerospace Publishing Ltd v Thames Water Utilities Ltd [2007] EWCA Civ 3, the Court of Appeal was concerned with a case in which an archive had been lost as a result of flooding which was the responsibility of the defendant. One of the damages claims related to “payments made to staff for work necessarily done by them in relation to, and consequent upon, the flood” (Paragraph 73). Wilson LJ who gave the judgement of the court on this topic reviewed the authorities and said at Paragraph 86:

“I consider that the authorities establish the following propositions:

(a)

The fact and, if so, the extent of the diversion of staff time have to be properly established and, if in that regard evidence which it would have been reasonable for the claimant to adduce is not adduced, he is at risk of a finding that they have not been established.

(b)

The claimant also has to establish that the diversion caused significant disruption to its business.

(c)

Even though it may well be that strictly the claim should be cast in terms of a loss of revenue attributable to the diversion of staff time, nevertheless in the ordinary case, and unless the defendant can establish the contrary, it is reasonable for the court to infer from the disruption that, had their time not been thus diverted, staff would have applied it to activities which would, directly or indirectly, have generated revenue for the claimant in an amount at least equal to the costs of employing them during that time."

Lord Justice Wilson also referred to the judgment of Mrs Justice Gloster (as she then was) in R + V Versicherung AG v. Risk Insurance and Reinsurance Solutions SA[2006] EWHC 42 (Comm) in which she said:

A similar view was formed by Mr Justice Ramsey in Bridge UK Com Ltd v Abbey Pynford PLC [2007] EWHC 728 (TCC) in which there was a claim for management time incurred by the claimant’s staff in dealing with problems caused by the defendant. He said:

I am satisfied that there was a substantial diversion of staff time in this 2010 to 2011 period to address the problems associated with the steps and seats and that, inevitably, that there was a substantial disruption to its business both in connection with the Museum in question but also the running of its seven other museums or historical buildings. There is nothing intrinsically wrong with the retrospective assessment which Ms Granville has done; she was closely involved in this period and was clearly taking a particular interest in these serious problems which were materially delaying the effective opening of the Museum. She was well placed to know how much time was spent at least in a general and broad sense.

Whilst I am by no means convinced that it is necessary as a matter of law to find that “staff would have applied it [their time] to activities which would, directly or indirectly, have generated revenue for the claimant in an amount at least equal to the costs of employing them during that time” (because Lord Justice Wilson was not limiting the loss, waste or application of management time claims in this way), I can and do make this inference. The reason is that the staff actually had other jobs to do other than cope with the fallout from the steps and seats problems. For instance, Ms Granville was and is in charge of eight buildings for the Claimant; they all generate income albeit that it is clear also that some income is generated from grants or charitable giving. Her time, for instance, could and would have been better spent doing things which undoubtedly would have assisted in the generation of revenue. If one also brings in her evidence that there were what she called "backfills", the justification for a recovery of management time becomes even more compelling. She said that, by reason of her involvement with the problems, other people took over parts of her other roles and there was a ripple effect with yet more people having to do the work which those other people did not have time for; she said that additional roles were actually created to fill the gaps that were left. She said that each of the people who took on additional duties were paid either a responsibility allowance or were temporarily re-graded to cover for her substantive role.

In my judgment, an innocent claimant which has established its cause of action can recover its management time reasonably spent dealing with the consequences of the negligence or breach of duty in question. Although it could be said that it would have to pay the salaries in any event to its staff and has therefore incurred no loss, the time of the staff is being deployed to remedy or otherwise address the otherwise recoverable loss and as a matter of causation it is equally being incurred for two causes, one the employment and the other the cause of action itself. This view is supported by Gloster J in the R + V Versicherung AG case.

In my judgment, the Museum is therefore entitled to recover for management time expended addressing at the problems associated with the steps and stairs. Turning to the quantification, it is fair and reasonable given the relatively general retrospective assessment done by Ms Granville to adopt a reasonably cautious approach. I broadly accept the assessment which she makes in respect of herself which is 36.5 days’ worth of her time over the period but I reduce it to 30 days to reflect the fact that she said that she had discussed the percentages with Mr Williams, they had both looked at their diaries and that it was difficult to estimate how much time they had spent discussing the particular issue; she said elsewhere that she had done a "sense check. Although she was confident that at least this time was spent, I am satisfied that at least 30 days were spent by her; although it may well have been more, I can not be satisfied on the balance of probabilities that it was. The same can be said for Mr Williams and Ms Green for whom similarly 36.5 days were claimed; I allow 30 days in respect of each event. In relation to Mr Hemmings for whom 122 days are claimed, there is on the evidence a mathematical error which suggests that at most his time would have been 97.5 days. I round this down to 90 days because over the 18 month period Mr Hemmings clearly had other work to do and I can be confident that at least 90 days would have been applied by him to dealing with the fallout from the steps and seats problems.

This produces the following:

Ms Granville identifies £90,467 as the likely cost of the Museum’s staff time during the remedial works. She says that she, Mr Williams and Mr Hemmings will be deployed for varying percentages of their time during the tender period and the course of the works. This was challenged on the basis both that the assessments of time were excessive and also on the legal basis that it was not recoverable. I have dealt with the legal argument above and I am wholly satisfied that, even if it is necessary to establish it, their time would generate revenue equal to their salaries or that others will have to be paid to fill their normal roles.

I have found that the remedial works will take 26 weeks (or 130 working days), all things being equal. Ms Granville identifies a 20 day tendering period. This is obviously a condensed period because, from inception of the scheme and detailed design process, the preparation of drawings and specifications for tender, the sending out of those documents to tenderers, the receipt back of tenders, the consideration of the tenders, the decision making, the acceptance of the successful tender, the finalisation of the construction contract and the start of the work will span probably 6 months at the least. A 20 day tendering period is therefore realistic for her to take.

She then takes the whole of the tender period (20 days), 50% of all but the last 2 weeks of the construction phase (60 days) and the whole of the last two weeks (10 days), to produce 90 days in total of her time. She is justifiably anxious to ensure that the problems are resolved and do not happen again and I am satisfied that she will spend substantial periods of time in connection with the remedial works. Neither she nor the Museum can afford to have the problem not resolved or go wrong again. In the tender period she will need to provide input into what is required, to liaise with the professional team, help approve the successful tenderer, liaise with the Museum staff and to involve herself in numerous such activities. The 20 days is a realistic estimate of her time. I suspect however that 70 days over the construction period is somewhat pessimistic given the others, both independent professionals and Museum staff, being involved. In my judgment, 40% of the 130 days is realistic, 52 days.

She allows the full time of Mr Williams, the Director of Estates. In my judgment, this is too high, particularly if Mr Hemmings is deployed full time to this project. In effect I wonder what he will be doing all day every day. I can see and accept that he, at his senior level, will need to be involved in detail and for significant periods of his time and will often need to be the first point of contact for others. He will be heavily involved initially in the design and tender stage and regularly and frequently involved as the works progress. I assess that at least 100 days of his time will reasonably be deployed.

Mr Hemmings will be deployed full time as the eyes and ears of the Museum and properly and reasonably so during the works. This is justified as providing some additional supervision of not only the works but also of the consultants, liaising with the other functioning parts of the building and to provide effective reporting to the Museum as to what is going on. I would allow his time for 130 days.

This quantifies as:

Legal costs

This is claimed for legal costs associated with having independent solicitors advise on and help with the drafting of the contracts with the remedial works contractor and consultants. This is a reasonable head of claim as it will be important to ensure that the contracts protect the Museum adequately. The sum is obviously reasonable: it amounts to no more than about 40-50 hours of an assistant solicitor which is very modest.

The Museum identifies £213,000 as the likely cost for a Project Manager (plus assistant -150 days each), Costs Manager (80 days), Contract Administrator (65 days) and CDMC (10 days) over the period of the lead up to and the execution of the remedial works contract for these steps and seats. Mr Fitch said in evidence that he thought in effect that this was disproportionately high in relation to the likely cost of remedial works and that 15% of the cost of the remedial works themselves was appropriate. His figures and approach were challenged by the defending parties on the basis that they produced too high a figure, particularly in the context of the 15% allowance already in Item 6 (Allowance for design/local authority and building control fees). It was also argued by them that it was totally unnecessary and unreasonable to retain these further consultants.

In my judgment, it is wholly reasonable for the Museum to retain consultants to provide project and costs management. I do consider however that the contract administrator role should not be priced separately; the architect often provides this role and is well placed to do so and I consider that the 15% allowance for architect and engineer at which I have already made in relation to Item 6 is sufficient to cover the contract administration role. It is sensible and reasonable for there to be costs management, this almost invariably being provided by quantity surveyors: quantity surveyors are best placed to provide cost reporting prior to the construction contract and cost control and valuation services during the construction project. Project management was always recognised by all parties on this contract as being necessary, reasonable and desirable. There has to be an "interface" between the clients, the consultants and the contractor and it is very important that such project management is provided for the remedial works to provide a reasonable level of assurance to the Museum that everything is being done properly and well by all concerned. There is little issue that some CDM involvement is required; this relates to Construction Design and Management Regulations requirements. The allowance which I have made in item 6 does not include for project and costs management or CDM costs.

One therefore turns to the assessment. Mr Fitch said and I accept that the following allowances can and should be made:

I see no reason not to use the daily cost figures of £600, £250 and £550 upon which this claim is based because they correlate to the figures which were actually charged by Mace and T&T:

In summary, the total monetary damages which I award to the Museum in relation to the steps and seats claim is £1,127,870.40. In addition there will be appropriate declarations in relation to an indemnity against Items 10 and 11.

It is necessary to analyse the above figures to determine what loss has been (or will be) caused by the Contractor’s breaches of contract. I take out Items 8 and 9 which are entirely the responsibility and fault of AEW. Items 16, 17A and 17B on analysis have nothing to do with the Contractor and stem only from AEW’s defaults. Similarly, Items 18 and 19 were not caused as such by any breach on the part of the Contractor. That leaves the balance, which is all was as much caused by the breaches of contract of the Contract. The balance is £820,323.60.

The Contractor is liable under its contract for negligence in relation to its failure to specify adequate cover in relation to reinforcement for the steps and seats but not for any carelessness in proposing a gap of 10 mm between units. It is not liable for the geometry problems.

Section 1(1) of the Serve all Liability (Contribution) Act 1978 states that:

“…any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)".

I have formed the view that the Contractor should bear responsibility for 25% of what might be called the common damage. My reasons are as follows:

There will be judgment for the Museum against AEW for the sum of £1,127,870.40 in relation to the steps, seats and terraces plus an indemnity in relation it Item 10 above (Security costs) and Item 11 (Loss and expense incurred by the Contractor in relation to prolongation). All questions of interest will addressed separately and later. There will be judgment for AEW on the Part 20 proceedings in the sum of £205,080.90. Due to time constraints caused by my (I hope justifiable) reluctance to start substantive work on the judgment whilst the parties were apparently trying to settle the proceedings following final speeches, I will continue to complete the judgment overall in relation to the ceilings claims which I will hope to produce over the next few weeks.