A & V Building Solution Limited v J & B Hopkins Limited

On 15 February 2023: [2023] EWHC 301 (TCC) (Footnote: ¹ ) ;

On 16 June 2023: [2023] EWHC 1483 (TCC) (Footnote: ² ) ;

On 6 October 2023: [2023] EWHC 2475 (TCC) (Footnote: ³ ) ;

On 17 October 2023: [2023] EWHC 2576 (TCC) (Footnote: ⁴ )

The value of A & V’s works at the time it left the Project

Claims by A & V for losses allegedly suffered before it left the Project;

Competing claims between the Parties as to the financial consequences following A & V’s decision to abandon the sub-contract works.

Clause 4.1: The Sub-Contractor shall supply all labour, supervision, administration and plant and equipment (including any storage on site required) necessary for the Sub-Contractor to carry out the Sub-Contract Works in accordance with the Sub-Contract.

Clause 4.7: The Sub-Contractor shall advise J & B Hopkins when it requires the delivery (whether to Site or the Sub-Contractor’s premises) of Free Issue Materials. The Sub-Contractor shall retain all delivery/advice/collection notes for all such items provided by J & B Hopkins and shall return such documents to J & B Hopkins as directed by J & B Hopkins. Free Issue Materials not incorporated into the Sub-Contract Works and/or used in the carrying out of the Sub-Contract Works shall be returned to J & B Hopkins immediately upon Practical Completion.

Clause 4.8: Free Issue Material shall become the responsibility of the Sub-Contractor upon delivery to it either at the Site or the Sub-Contractor’s premises. The Sub-Contractor shall assume all risks and insurance obligations in Free Issue Materials upon such delivery to it until Practical Completion. Title in Free Issue Materials shall be retained at all times by J & B Hopkins.

Clause 4.9: The Sub-Contractor shall satisfy itself in good and sufficient time before commencing any part of the Sub-Contract Works as to the position, dimensions and suitability of any previous work, which might affect the Sub-Contract Works and shall promptly advise J & B Hopkins in writing if any such previous work is out of position, wrongly dimensioned or in any other way unsuitable. The Sub-Contractor shall not be entitled to any adjustment of the Sub-Contract Sum or to an extension of time in respect of any discrepancy in position or dimension or other unsuitability of any such previous work unless the Sub-Contractor shall have advised J & B Hopkins of the same in accordance with this clause.

Clause 4.10: The Sub-Contractor shall be liable for the cost of replacement of any items of plant and equipment, Free Issue Material and materials and goods (whether Free Issue Materials and/or materials and goods are incorporated into the Sub-Contract Works or not) stolen or damaged whilst on site. All costs caused to J & B Hopkins as a result of such theft or damage shall be recovered as a debt due from the Sub-Contractor under this Sub-Contract.

Clause 7.1: The Sub-Contractor shall carry out and complete the Sub-Contract Works in conformity with the requirements of these conditions plus the Agreement and in such a manner as to avoid hindrance to the progress of others.

Clause 7.2: The Sub-Contractor shall, as soon as works are commenced on Site, proceed regularly and diligently with the execution of the sub-Contract Works in accordance with the construction programme and in accordance with progress of the works.

Any loss or expense caused to J & B Hopkins by the Sub-Contractor’s failure to comply with this clause shall be recoverable as a debt due from the Sub-Contractor or by way of set-off from sums due to the Sub-Contractor whether under this Sub-Contract or otherwise.

Clause 7.4: If in the opinion of the Contractor, the Sub-Contract works are failing to progress in line with the Contract Programme requirements, then after due notice of 7 days being given, and if resultant actions are not undertaken, it shall be J & B Hopkins’s prerogative to supplement the onsite labour requirements for the Sub-Contractor recovering all resultant costs as a deduction from the Sub-Contractor account.

Clause 8.1: J & B Hopkins may instruct a variation to the Sub-Contractor’s access date to the Site as may be set out in the Agreement by giving notice in writing to the Sub-Contractor at any time up to 5 business days prior to such date. The Sub-Contractor shall not be entitled to an increase in the Sub-Contract Sum and/or loss and expense as a result of or in connection with such variation.

Clause 8.2: J & B Hopkins may, at any time prior to Principal Practical Completion, by notice in writing require the Sub-Contractor to carry out a variation to the Sub-Contract Works. Notwithstanding anything to the contrary elsewhere in this Sub-Contract, no variation to the Sub-Contract Works shall be made necessary by reason of negligence, omission or default of the Sub-Contractor, its servants, agents and suppliers and in such event the Sub-Contractor shall not be entitled to any increase in the Sub-Contract Sum or any extension of time to the Completion Date.

Clause 8.3: The Sub-Contractor shall implement a variation immediately upon receiving notice of the same and the Sub-Contractor shall provide a quotation for the variation to J & B Hopkins within five days from receipt of the notice. A failure by the Sub-Contractor to provide a quotation pursuant to this clause and/or if such quotation is not agreed the Sub-Contractor shall not be excused from implementing the variation and in such event the Sub-Contractor shall be paid a fair and reasonable price for the variation.

Clause 8.4: The Sub-Contractor’s quotation shall comprise the following:

The value of the adjustment to the Sub-Contract Sum for performing the additional work supported by all necessary calculations for reference, where relevant, to the quantified schedule of rates in support of the Sub-Contractor’s tender and including, where appropriate, allowance for any adjustment of preliminary items;

Any adjustment to the period specified in the Sub-Contract Order and/or the Agreement and/or an agreed programme for the completion of the Sub-Contract Works to the extent that such adjustment is not included in any other extension of time which has been granted to the Sub-Contractor, or included in any other quotation accepted by J & B Hopkins in accordance with this Clause 8.0;

The value of the adjustment to the Sub-Contract Sum for any delay and/or disruption likely to be caused to the regular progress and/or completion of the Sub-Contract Works by reason of the instruction to carry out the additional work;

The method of carrying out the additional work; and

Any other information required by J & B Hopkins.

Clause 8.5: Within 7 days of J & B Hopkins receipt of the Sub-Contractor’s quotation, J & B Hopkins shall by written notice to the Sub-Contractor state whether it accepts the Sub-Contractor’s quotation. The acceptance by J & B Hopkins of any quotation provided by the Sub-Contractor in accordance with Clause 8.0 shall be in full and final settlement of the matters and process contained in the Sub-Contractor’s quotation and the Sub-Contractor shall not be entitled to any further change to the Sub-Contract Sum and/or any further extension of time to the Completion Date other than as set out in the quotation accepted by J & B Hopkins.

Clause 8.6: If J & B Hopkins does not accept the Sub-Contractor’s quotation, J & B Hopkins shall by written notice to the Sub-Contractor either direct that the additional work shall be performed (which, after completion of the same by the Sub-Contractor, shall be measured and valued by J & B Hopkins by reference to the rates specified in Appendix 8 for the like or analogous work but if there are no such rates J & B Hopkins shall be entitled at its complete discretion to make up the Sub-Contractor’s tender and apply those assessed rates), or direct that the additional work shall not be performed.

Clause 8.8: If J & B Hopkins accepts the Sub-Contractor’s estimate submitted under clause 8.7, J & B Hopkins will issue a variation notice setting out the agreed increase or decrease in the Sub-Contract Sum and/or the agreed extension of time to be granted. Such variation shall be entirely conclusive as to the effect of such variation. If the estimate submitted under clause 8.7 is not agreed, J & B Hopkins may nevertheless issue the variation notice and the Sub-Contractor shall be paid such sum and granted such extension of time as shall be fair and reasonable in all the circumstances. If a variation notice is issued, the Sub-Contractor shall thereupon proceed to comply immediately with such notice.

Clause 8.9: Notwithstanding anything in this clause 8.0, J & B Hopkins shall not be obliged to make payment to the Sub-Contractor for carrying out any variation to the Sub-Contract Works unless J & B Hopkins has instructed the Sub-Contractor to carry out such variation in writing.

Clause 8.10: The Sub-Contractor shall submit full and proper substantiation and such information as is required by J & B Hopkins and to J & B Hopkins satisfaction, in support of any Purport] to either variation works or an additional entitlement. This requirement shall be a condition precedent to payment for the same. This information provided by the Sub-Contractor shall clearly identify the source and basis of any purport to either variation works or any additional entitlement.

A fully detailed breakdown of all calculations and rates including, but not limited to, time sheets and material invoices, shall be provided by the Sub-Contractor.

Clause 8.11: Variation means a written instructed addition, substitution, or omission of work issued by the Contractor only. No alteration or modification to the design, quality and quantity of the Sub-Contract Works arising purely from the development of detailed design by the Sub-Contractor or from the co-ordination of the design or of the Sub-Contract Works with the works of other trades to avoid any spatial conflict or obstructions to access shall be construed or regarded as Variations.

Clause 9.5: The Contractor may not later than five days after the due date in Appendix 6, give a notice (“Payment Notice”) to the Sub-Contractor specifying:

The amount the Contractor considers to be due to the Sub-Contractor showing the basis on which that sum has been calculated, less retention, or such other amount as specified in Appendix 6, less any money previously paid;

In relation to a Payment Notice, it is immaterial that the amount then considered to be due may be zero.

Clause 9.8: Rules governing retention deducted and retained by the Contractor are as follows:

Prior to the First Retention Release Date the Contractor will retain the percentage as stated in Appendix 6.

50% of the retention amount held by the Contractor shall be released on the First Retention Release Date.

The remainder of the retention amount held by the Contractor shall be released on the Second Retention Release Date.

Clause 10.3: The Sub-Contractor shall indemnify J & B Hopkins in full against all liability, loss or damage (including costs, expenses and legal expenses) to persons or property real or personal, arising out of the carrying out of the Sub-Contract Works except where and to the extent such liability, loss or expense is caused by an act or omission of J & B Hopkins.

Clause 10.4: The Sub-Contractor warrants that it will carry out and complete the Sub-Contract Works in such a way so as not to directly or indirectly cause J & B Hopkins to be in breach of any provision of the Principal Contract and/or any other Contract made by J & B Hopkins in connection with the Works or incur any other liability thereunder. The Sub-Contractor hereby acknowledges that any breach or default by it of the Sub-Contract may result in J & B Hopkins committing breaches and/or becoming liable in damages under the Principal Contract and/or any other Contract made by J & B Hopkins in connection with the Works and may occasion further loss and/or expense to J & B Hopkins in connection with the Works and J & B Hopkins and the Sub-Contractor hereby acknowledge that any such damages, loss and expense are hereby agreed to be within the contemplation of the parties as being probable results of any such breach and/or default.

Clause 11.1: J & B Hopkins shall have the right to suspend performance of the Sub-Contract Works by the Sub-Contractor for any period J & B Hopkins requires upon giving written notice to the Sub-Contractor who shall forthwith comply with such notice. J & B Hopkins may end suspension of the Sub-Contract Works by giving written notice to the Sub-Contractor and the Sub-Contractor shall forthwith resume performance of the Sub-Contract Works ….

Clause 11.2: The Sub-Contractor may suspend performance of its obligations under this Sub-Contract where a sum due to the Sub-Contractor is not paid pursuant to clause 9. Such right to suspend shall not be exercised until the Sub-Contractor has given 14 days’ notice in writing to J & B Hopkins of its intention to suspend performance and stating the ground or grounds.

Clause 12: If J & B Hopkins fails to make payment to the Sub-Contractor of any sum which is due to the Sub-Contractor under this Sub-Contract by the final date for payment of that sum, J & B Hopkins shall pay to the Sub-Contractor in addition to the amount not paid simple interest thereon for the period from the final date for payment to the date payment is made. The rate of interest shall be 2% over the Base Rate of the Bank of England current at the date of J & B Hopkins default. The Sub-Contractor acknowledges that such rate is a substantial remedy for late payment (as defined in the Late Payment of Commercial Debts (Interest) Act 1998).

Clause 13.1: If the Sub-Contractor fails to complete the sub-Contract Works by the Completion Date it shall pay or allow to J & B Hopkins as a debt from the Sub-Contractor or by way of set-off from sums due to the Sub-Contractor under this Sub-Contract a sum equivalent to any loss or damage suffered by and/or anticipated to be suffered by, J & B Hopkins and caused by such failure including, but not limited to, J & B overhead charges and supervision and liquidation damages payable by J & B Hopkins under the Principal Contract. J & B Hopkins is hereby authorised to deduct or set off any amount payable under this clause from any payment which may at ant time be due or have become due to the Sub-Contractor whether under the Sub-Contract or otherwise.

Clause 13.2: If the Sub-Contractor shall be delayed in the execution of the Sub-Contract Works by:

Force Majeure; or

The order of any variation to the Sub-Contract Works under clause 8; or

Any breach of the Sub-Contract or act of prevention by J & B Hopkins; or

Suspension of the Sub-Contract Works in accordance with clause 11

then the Sub-Contractor shall be entitled to such extension of time to the Completion Date as J & B Hopkins may determine acting reasonably provided always that any such extension of time shall not exceed any extensions of time to which J & B Hopkins is properly entitled under the Principal Contract.

Clause 13.3: It shall be a condition precedent to the Sub-Contractor being granted an extension of time pursuant to clause 13.2 that the Sub-Contractor shall notify J & B Hopkins in writing within 14 days of such event occurring that it is or may be prevented from completing the Sub-Contract Works by the Completion Date. Except for suspension of the Sub-Contract Works pursuant to clause 11.2, a failure to comply with this clause shall prevent the Sub-Contractor from being entitled to an extension of time to the Completion Date.

Clause 13.4: The Sub-Contractor shall constantly use its best endeavours to prevent or minimise any delay in the progress of the whole or any part of the Sub-Contract Works.

Clause 15.1: If the Sub-Contractor:

Fails to proceed regularly and diligently with the Sub-Contract Works after being required in writing so to do; or

Without reasonable cause suspends the carrying out of the Sub-Contract Works; or

Refuses or persistently neglects after notice in writing from J & B Hopkins to remove defective work or improper materials; or

Becomes insolvent as set out in clause 15.2; or

Fails to comply with any applicable legislation; or

Is in breach of this Sub-Contract

then, without prejudice to any other rights and remedies it may have J & B Hopkins may except in the case of sub-clause (4), by written notice (the “Notice”) to the Sub-Contractor require the Sub-Contractor to remedy such failing and/or breach within 7 days from the date of the Notice. In the case of sub-clause (4), or if the Sub-Contractor fails to remedy its failing and/or breach within 7 days from the date of the Notice, J & B Hopkins may forthwith determine the Sub-Contractor’s employment under the Sub-Contract and may elect to employ a third party to complete the Sub-Contract Works or complete the Sub-Contract Works itself.

Clause 20.3: The decision of the adjudicator shall be binding until the dispute is finally determined by legal proceedings or [by] agreement.

Clause 20.4(5): The Adjudicator’s decision shall be binding until the dispute is finally determined by the High Court or by agreement between the Parties.

Clause 22.1: All notices under or in respect of this Agreement shall be deemed to be duly given or made when sent by recorded delivery to the address set out in the Agreement. All other communication made by e-mail or facsimile as set out in the Agreement shall be deemed given when sent.

Clause 23.1: No waiver by J & B Hopkins of any breach of the Sub-Contract by the Sub-Contractor shall be a waiver of any subsequent breach of the same or of any other provision of the Sub-Contract. No failure by J & B Hopkins to exercise any right or remedy arising under the Sub-Contract or at law shall be a waiver of its right to exercise such rights arising subsequently.

Appendix 2

Scope of Sub-Contract Works.

….

Defined Scope of Works

The Sub-contract package of works comprises of the supply of labour, supervision and management required to install the free issue plumbing works further identified below. For the avoidance of doubt all installation materials are to be free issued by J & B Hopkins.

…

Mr Adam Hill, J&BH’s Operations Manager and Contract Lead;

Mr Seth Brown, J&BH’s Quantity Surveyor;

Mr Andrew Macey, one of J&BH’s Project Managers; and

Mr Julian Smart, one of J&BH’s Site Managers.

The present Programme for the sub-contract works is as per J&B Hopkins construction programme Moulsecoomb draft M&E programme and is subject to revision as the contract proceeds – key dates and short term look aheads will be issued throughout the duration of the works.

….

Critical dates to be achieved: …. As per JBH M&E Construction Programme

….

The Sub-Sub-Contractor will attend site, execute and resource the works in accordance with J&B Hopkins key dates requirements, including for all necessary visits, whilst complying with all reasonable requests and directives issued by J&B Hopkins.

NB: Works will only be considered for payment as daywork on the basis of an order for daywork issued by our Site Manager and will only be evaluated against daywork sheets submitted daily in detail and authorised by our Site Manager and Project Manager. However, such signature will not necessarily entitle the Sub-Sub-Contractor to payment as daywork. Daywork hours shall be checked against the daily allocation sheets signed by the Sub-Sub-Contractor’s labour.

A& V was selected as the plumbing subcontractor by the operations team through an interview and bidding process. A&V’s works included carrying out the mechanical installation works as part of the M&E package on towers 1, 2 & 3 and Podiums 1 and 2 at the Project on the Moulsecoomb University Campus, Lewes Road, Brighton. This included the installation of above ground drainage systems. The works to Podium Levels 1 and 2 consisted of a gym, students union and communal areas. On Podium level 2 there were bedrooms and communal kitchens. Works to Towers 1, 2 and 3 including distribution of domestic hot (“DHWS”) and cold water systems (“DCWS”) water systems (“DHWS”) and low temperature hot water systems (“LTHWS”) all of which derived from the underground district systems which fed these services through risers to each floor plate. Each floor plate generally consisted of approximately 12 Bedrooms and two communal kitchens. A&V’s works included quality assurance (“QA”), testing, and handover.

A&V’s work flow and installation on the Moulescoomb University project was broadly based on the following installation sequences:

General Sequence of works

The main contractor, Bouygues ("BYUK") built walls and single side boarded walls in advance of A&V's works to allow pipes to be installed within the fabric of the walls before being double side boarded and fully enclosed. In the case of plumbing installation works within the service risers, A&V's 1st fix works required the walls to be boarded and fire tape sealed to allow the pipe brackets and surface pipework including the HDPE drainage soil stack installation to commence.

The installation of HDPE drainage started on the ground floor before progressing up the risers which were supplied prefabricated to A&V from JBH. This sequence allowed the bathroom pods and DDA (disabled access) bathrooms wastewater to be connected to a network of drains. Each HDPE drainage system had what we call a stack number. Once installed, this network of pipework was tested to ensure the system was sealed correctly when each stack was complete. This is known as soil stack testing which was an activity for A&V to complete.

Sequence for floor plates (Typical sequence within a floor plate)

Floor plates consisted of bedrooms and two communal kitchens which were constructed by a drylining company and then handed over to JBH for M&E 1st Fix distribution pipework.

A&V had to connect plumbing and soil wastes to bathroom pods associated with each student bedroom. Bathroom pods were pre-constructed fibreglass units which were free issued and positioned completed in bathrooms. A&V had to make external connections to pre-installed pipework connections on these pods for hot and cold water and waste connections for the WC, shower and sink.

There were a small number of DDA bathrooms which had services and sanitaryware connected to in a traditional way with 1st fix pipework, soil pipe and wastes installed, followed by wall closures and QA checks/handovers, The drylining subcontractor would follow on to board and close walls. Once closed, subsequent trades included the decorators, ceramic wall tilers, flooring installation and the installation of vanity units. Once these works had been completed, A&V's 2nd fix works could be carried out which included the fixing of sanitaryware including basins WC's and shower rails.

Handovers for 1st and 2nd fix works were generally managed via meeting minutes issued by BYUK. If areas handed over to JBH were not in a satisfactory condition, we recorded this in the 1-Auditor software and identified why the M&E works were not able to proceed. This would normally result in BYUK rectifying the issue or, as we call it, removing a "blocker" to enable works to commence. An example would be materials of others left in the workspace or an incomplete wall area stopping A&V from making a meaningful start. This system was also used to hand back areas when A&V had completed its works. This process was managed by our freelance QA Manager Wayne Reed and BYUK.

M&E services were completed on floorplates. A&V's 1st fix services works included main distribution of DHWS and LTHW pipework in corridors & risers then tested over a 10-day period which included a two-day transition period for QA checks and removing material ready for hand-over to the next trade. After A&V had installed the pipework services on a floor plate, the pipework was pressure tested in sections prior lagger (thermal insulation) being applied to the pipework.

Floorplates were then handed back to BYUK for dryliners, decorators, the flooring contractor and ceramic tiler to complete their works before handing back to JBH and A&V for M&E 2nd fix works.

A&V's 2nd fix works consisted of the installation of radiators and final connections to kitchen sinks, testing and filling of services. Once completed there was a further transition period for QA checks and clearing the floorplate for handover back to BYUK.

A&V's Final Fix, also referred to as 3rd Fix, included TRV Heads. These are the thermostatic mixing valves which control the heat output on the radiators.

Commissioning

Once the systems were completed, a separate commissioning company was responsible for setting up the heating systems, LTHW and domestic systems. Additional specialists were engaged to flush the systems adding inhibitors to the LTHW heating system and chlorinating the domestic water systems.

The works at Moulescoomb began in late January 2020, with J&B Hopkins being so happy with the performance, quality and the work my business A&V have done in the first few months at Mouslecoomb, again, so happy, that J&B Hopkins have sent eight more projects for A&V to tender (while A&V was working on Mouslecoomb) from which I secured one of the eight projects and signed another Sub-Contract with J&B Hopkins for the Addington Valley Academy Project.

It is admitted that Bouygues closed the site for approximately 8 weeks from 4pm on 27 March 2020 as a result of Covid-19.

The Claimant had already halted its Works and left the site on 24 March 2020, before the closure of the site. On 24 March 2020, Mr Paduraru sent an email stating that the Claimant had “all decided to stay at home for at least 2 weeks”.

Clause 11.1 grants the Defendant a right to suspend performance of the Sub-Contract Works. There is no obligation on the Defendant to do so and it cannot be in breach for failing to exercise this right.

In any event, it is denied that any such breach could have caused the Claimant any loss. Under clause 11.1, if the Defendant exercises its right to suspend, the Claimant is not entitled to any adjustment to the Sub-Contract Sum or additional payment.

The initial effects of Covid-19 on the site meant that the works had to be managed differently by BYUK. BYUK reduced its main contractor site labour levels, which led to corresponding changes to staffing and adjustments to programmes. However, with the work faces available, A&V and our other subcontractors were able to maintain their labour levels when we returned after the site lockdown while still achieving the required safety protocols that the government had in place at the time. Site conditions changed with the implementation of one-way systems. For example, some staircases changed to either up or down only. Workfaces were made available to one trade at a time to reduce the chance of spreading the virus. Toilet facilities were reduced on site as well, with additional facilities added by BYUK to mitigate the risks associated with cross-contamination via other trades. Works had to be planned more carefully as a result of Covid-19 restrictions but, once these were bedded in, we generally found that the single trade access requirements meant that the works progressed more productively than they would have done if several trades were working on workfaces at the same time.

Good morning Julian,

Julian with all my respect you can not keep asking us to jump on something straight away within the last moment, this is a Directed Acceleration Work!

From now on I will request a prior to commencing work notice from you, same as we do with 2 weeks look ahead program.

In one side we are constantly delayed on floors plates day by day by BYUK ([where] I will come back shortly with a delay notice for that)

On the other side you accelerate the program on upper floors or any others area of work without giving us a reasonable time notice and this is a bit frustrating.

Delaying and accelerating the work in a same time it’s not good for us, but I will discuss all this matters and more with Adam on our minutes meeting.

The RWP in T3 was asked by myself to Ian and yourself to be complete 2 weeks ago, as you request I will inform you of everything we require and when it needs to be complete by email. What is required and when is agreed at the weekly 2 week look ahead you would also be copied in with these.

HepBurns will still be on the floor as the floor hasn’t been handed over to us but you can make a start, although saying that you already did last week.

Just to let you know, based on your 2 weeks look ahead we can not do the following:

T1 L2 - 2nd fix can not be complete because of Hepburn, they haven't completed the repairs behind the radiators, disable toilet it's not ready for 2nd fix too.

T1 L3 - not ready for 2nd fix (far behind).

T2 L3 - not ready for 1st fix (far behind).

I'm [recording] all this days since we start in Moulsecoomb, until now we are almost 2 months delayed on floor plate 1st fix and 2nd fix day by day!

The system itself appears to have been created to deal with the problems caused by BYUK’s failure to provide working areas in accordance with pre-Covid expectations;

It was inherent in the system that A & V would only know on the Friday before a two week period what working areas would be made available to them;

The evidence of Mr Paduraru, supported by the contemporaneous documents to which I have referred, was that areas said to be available were not always available, and even where available were often obstructed by other workforces;

Often A & V would go into an area to carry out work ahead, for example, of the dry lining work, but would then be required to revisit areas once the dry lining work had been completed.

A&V’s labour levels were up and down throughout his involvement on the Project, and they regularly left site early which caused problems with progress. It seemed to me that A&V’s labour was impacted by turnover of individuals, with a core of perhaps 3 skilled plumbers. Other A&V operatives completed bracketing out and more of the lower skilled jobs such as cutting stud for clips, fixing radiators, copper to iron converters into valves. I had initially thought that one of A&V's operatives who went by the name of "lan" was the owner of A&V as he appeared to be managing A&V's labour on site. However, I later learned that Alex Paduraru was A&V's owner. Alex was not personally working on the Project and I only saw him on site a few times although, towards the end of A&V's involvement on the Project, Alex did attend more frequently.

During the course of the works, I recall a recurring issue with A&V's installation of pan floats (soil pipes running from the back of the toilet plan to main vertical soil stack) which had not been clipped as required. This resulted in waste pipes running up hill. When I raised this with A&V, A&V instructed one of its operatives (who went by the name of Martinez) to clip the pan floats. This was a basic task that should not have been missed by A&V and resulted in re-work. Despite some improvements being made by A&V initially, the quality and attention to detail in A&V's works dropped off and I ended up clipping a number of floats on different floor plates myself together with other JBH operatives.

On several occasions during the period of A&V's works, concerns were raised by Adam Hill (JBH Operations Manager), Andrew Macey (Senior Mechanical Project Manager) and BYUK that A&V were starting to fall behind programme. In other words A&V was failing to complete the works available on floorplates within the required timeframes. Adam Hill, Andrew Macey and Seth Brown (JBH Quantity Surveyor) wrote letters and emails to A&V regarding the lack of site progress. These issues were mainly due to A&V's productivity levels caused by the fact that A&V did not work to the site hours which were 8am to 6pm Monday to Friday. Instead, from what I witnessed when I was on site, A&V's operatives seemed to work from around 8.00am to 3.00 - 3.30pm (at the latest). I discussed this with our construction team who I know asked A&V to increase their site working hours.

I recall talking to one of A&V's operatives who explained they were leaving at those times due to the travel back to Essex. When I asked the same question to local agency lads on site employed by A&V, they said that that was the time they were told to work to by A&V despite them being local.

Another recurring issue with A&V was its use of materials. I remember raising a concern as to why A&V were using large numbers of copper crimped pipe fittings unnecessarily in pod service risers for offsets and changes in pipe direction. Installing these fittings was time consuming and expensive, and also added to the risk of leaks due to excessive jointing. The other subcontract mechanical installation team on Towers 4 & 5 (Watertight) were installing the pod risers using a pipe bender rather than large amounts of crimped fittings. Watertight's method was the correct/preferable way to install as this reduced the number of joints and potential weak points in the system. The team did challenge A&V on this, but A&V didn't choose to change their installation methods. I was told this was to do with the skill base of their operatives.

l am aware from conversations with Adam Hill from December 2020 through to March 2021 that Adam raised concerns with A&V regarding A&V falling behind programme due to several poor workmanship issues and ongoing poor productivity levels. In January 2021 a [decision] was made by Adam Hill to add an additional mechanical supervisor, lan Davidson, to the site team specifically to support, manage, and supervise A&V's works. This was because A&V were absorbing a lot of the other supervisor's time. lan Davidson was brought to site in February 2021 to fulfil this role.

Concerns regarding A&V's performance came to a head in around March 2021. I can clearly remember Adam Hill raising concerns to me in early March 2021 that A&V had reduced their labour levels on site. Adam made me aware that he had been speaking to A&V on site and by phone and email regarding its labour levels. JBH subsequently escalated matters with more formal correspondence issued by JBH's Quantity Surveyor, Seth Brown.

JBH by not accepting the Towers and Podiums Floor Plates (the Areas of Work) from Bouygues UK, and timely release in accordance with the Contract Programme [Trial Bundle 1, page 308 - 345] has caused major delays for A&V.

In fact, during A&V's time on site, JBH never accepted the Podiums levels from Bouygues UK and formally rejected them, on 22 February 2021 [Trial Bundle 3, page 1176 - 1180].

However, despite the fact that the Podiums levels were never accepted by JBH, A&V was asked by JBH to carry out the plumbing installation works in those areas [Trial Bundle 4, pages 1541; 1542; 1543; 1544; 1545; 1546; 1547; 1548; 1549; 1550; 1551; 1554; 1555; 1556; 1557; 1558; 1559; 1560; 1561; 1562; 1563]

Consequently, on the 12^th of March 2021 (A&V's date for completion of the Sub-Contract) [Trial Bundle 1, page 333] small elements of work remained incomplete on Podium 1- Level 1 (East); Podium 2 – Level 1 (East and West) only, as demonstrated by JBH in [Trial Bundle 5, page 2208 - 2010].

These details are confirmed in the JBH witness statement of Mr Ian Davidson dated 29 February 2024 paragraph 17 [Trial Bundle 1, page 180] and were further confirmed by Mr Davidson, at the Trial, in his oral witness statement under oath.

After a period of three years and two months, the truth finally came out, and it has been conclusively confirmed by JBH now, that A&V's position, consistently maintained as correct and true, is affirmed by the fact that as of 22 March 2021, Tower 1; Tower 2; Tower 3 and Podium 1 - Level 1 (West); Podium 1 - Level 0 (East and West); Podium 2 Level 0 (East and West) were indeed fully completed, this being confirmed by Mr Davidson, at the Trial, in his oral witness statement under oath.

During A&V's time on site, A&V repeatedly informed JBH of the delays they were experiencing, which were not due to their own fault, as documented in the emails listed in [Trial Bundle 4, page 1524; 1529; 1532; 1673; 1674; 1675; 1676; 1799; 1801; 1804]. A&V's emails have never been disputed by JBH (up until March 2021) but agreed / acknowledged that the dates had been re sequenced, as detailed in [Trial Bundle 4, page 1532]

Mr Dominic Harman, a Director of JBH, further confirmed in his oral witness statement under oath that the contract programme was re sequenced due to the eight-weeks Covid shut down and further because the areas of work were not handed over to JBH on time as per the contract programme nor accepted by JBH as areas ready for the Mechanical 1st fix and 2nd fix plumbing installation works to commence in line with the Contract Programme. These programmes were made and issued by BYUK / JBH and not A&V.

Consequently, in fact the Contract was completed only on 4/5 October 2021 [Trial Bundle 4, page 1565, 1566] which is six months and twenty-three days beyond A&V’s completion date, also confirmed by Mr Harman in his oral statement.

Please see attached payment notice covering works completed to period end January 2021. You will notice some comments where we disagree with the claim made.

Are you available this Thursday morning (at Brighton office) to discuss and carry out an account review to try and get this realigned?

Hi Adam / Seth

Thanks for your time today.

Just to let you know I did think about increasing labourer on site.

Basically I need at least 6 to 8 plumbers for couple of weeks. Which will [add] up around to 15 plumbers.

To supply those numbers is not a problem for me, I will get more plumbers in on Monday the 1st of March. But what I will need extra is another supervisor, I must have 2 supervisors between them.

My prelims allowance was for 1 supervisor only and because now we have these unexpected acceleration programme I hope I can get your support by paying the 2nd supervisor for these acceleration period of time on day work sheet basis.

Please let me know if you agree with what I have mention above.

In regard with the delay thing and value of it, I will come back to you by end of play tomorrow.

Have you got anymore costs that we need to review? I am very keen to get this resolved today or tomorrow.

We have instructed Martyn to install the heating pipework above the ceiling in P2 as we are concerned that this would add additional stress to finances.

Can you advise ASAP so we can make a final decision.

Hi Adam,

We working at this as I want to give you more information as possible.

You will receive the 2 weeks look ahead back dates since we start with the proposal dates,and all the floor plates acceptance and rejections, then you can see exactly how big is the gap ( time) that we been pushed back (which I am sure you JBH have all this [information] already).

But just to give you an idea of the cost for direct loss and expense incurred, by the time you get the info sent across to you tonight or early in the morning tomorrow is around 45k.

This is because the progress of our work has been affected by a matter for which your client is responsible for all the delays that BYUK created as you all are aware, by failing to give us the possession of the floors plate and others site areas on the proposal date agreed in the program or in the 2 weeks look ahead.

We have been delayed week by week since we start our 1st fix on site.

With the instruction work I never refuse to do it. I don’t know what made you think there is a financial stress for that.

I also want to come to a final decision ASAP for this project.

To review the labour and workfaces. Introduce the new JBH supervisor we have bought to

Moulsecoomb to help organise works etc.

We have to walk away from this meeting with a clear plan on how to complete the job.

Further to our meeting yesterday, I looked briefly at A&V hours on site. Its looks like your labour is on site for 6 hours a day. In this 6 hours you were attending morning briefs, and site movement.

This would mean your time at the workface was limited to roughly 5 hours per day. Please can you review this and increase your hours on site. On average all your labour spends about 90 to 120min less on site (per person per day) then all the other subbies/contractors.

Hi Adam,

Our working hours are 8:am to 15.30 which are 8.5h a day. Not 6h

But I will increase the hours work from now on.

Thank you

Hi Alex,

earlier in the week, when we sat down with Adam, I spoke about productivity. just noting you guys have left site today 2pm.

I asked if you would look at your team site hrs. where are you with that?

concern that you are not getting the full production from your team, and losing valuable to complete the works.

can you confirm the site working hrs for AV. if you need help monitoring your guys hrs. let me know.

The below is concerning to hear. We need to see this change now.

I am also concerned that you still haven’t got the correct level of labour on site. We spoke on Friday about Watertight helping where they could. At the moment they are busy completing rad pipework in the P2 L00 SU, and haven’t got spare resources. I believe Martyn is trying to get additional labour from tomorrow so he can achieve the completion dates in P2 L00. These are works that A&V should be doing. Martyn (Watertight) will be directed by JBH to work in areas that are available, and A&V are behind on programme. These areas will have a QA inspection before any works commence. Martyn isn’t there to subsidise your labour, he is there to make sure areas are completed in line with the 2 weekly look ahead (as sent by Julian).

As discussed JBH have bought in additional supervision to help A&V manage their works.

It is starting to feel like you are expecting JBH to pick up works you don’t want to do, this can’t be the case. We need A&V completed, and to do this we expect A&V to increase working hours (in line with the contract), productivity and labour.

I am still concerned labour levels are not covering all the workfaces.

I have now looked at your mens Biosite times, and summarise as follows

I have taken a snapshot for 3 or your men. over the recent 20 working days. the daily average time on

site is

man 1 – 07:04 hrs less 00:30 hrs lunch = 06:34 Productive hrs.

man 2 – 06:47 hrs less 00:30 hrs lunch = 06:17 Productive hrs.

man 3 - 07:22 hrs less 00:30 hrs lunch = 06:52 Productive hrs.

you are losing well in excess of 1 hrs production time per man every day

3men on site - 04:17 hrs per day lost.

6men on site - 08:34 hrs per day lost.

9men on site – 12:51 hrs per day lost.

this means your men are only 79% productive, when using 8 hrs work for the standard day. 21% of your

cost is therefore non recoverable.

I am happy to run through this with you.

Following to our conversation we had in the meeting last week I have attached the schedule with all the floor plates acceptances dates for T1 T2 T3 and Podiums.

Also as a [proof] that the floor plates start dates in this schedule are real once I have attached the Handover Inspection Report, where now you can see the gap between them.

This doesn’t really tell JBH anything regarding cost and delay. JBH can’t see that this contributes to a £30,000.00 variation. I understand that you are struggling and we want to help A&V complete this project but we also need to be very cautious of your current situation. JBH are very concerned that A&V will not complete the project due to cashflow.

I understand you were down on labour today again, this means that JBH we not complete on time in areas as per the 2 weekly overhead.

We need you to decide what A&V want to do to complete this project.

You have a few options as far as we can see.

Justify your claim for your variation. To formulate a plan and advise JBH on how you are going to complete the project with the remaining monies.

Complete the towers and fill the systems and test. JBH will take the remaining work within the Podiums 1 & 2 (Level 1 and 2) from A&V.

Walk away from the project and have JBH value your works. JBH to take over your works and take to completion.

Yesterday 8no Labour and Today 7no as it stands it seems you don’t have sufficient Labour to get areas which were released to us Monday 08/03 complete by 12/03. Can you resource sufficient labour to ensure all work accepted is complete by Friday 12/03.

Due to the issues and lack of labour on site JBH will start to subsidise you’re labour so key dates are not missed.

JBH will be controlling this labour and directing them to complete certain areas. Julian and Andy will keep you abreast of the situation on site, records will follow on email soon after.

The next 6 weeks are vital to the handover of the project.

As discussed last night please can you review your options. Also you need to increase productivity on site. I’m being total that you have local labour on site now and they are being told by A&V to finish up at 3pm.

There is no issue with the no. of labourers on site, I have already increasing from 6 plumbers to 10 in the last two weeks.

The problem is with the programme that has been accelerated not with us!

In regard with your options and all others enquires and problems, JBH will receive by this Friday my final decision in written about [Moulsecombe].

I have tried hard in the last weeks to come to an agreement about delays and acceleration programme with you guys ...

I gave you the cost for delays, I gave you the evidences for that too (where for you are not enough) I did ask for a solution of what we gonna do with this acceleration programme (no solutions, no plans) just waiting for me to increase labourer without any kind of deal.

I have put [Moulsecoombe] project top of my priority since we start, I have always hit the dates never let JBH down on site. I lost the interest in my other projects with my other clients for [Moulsecombe], but now at the end I can see JBH let A&V down, on top of that start accounting the time keeping on site and trying to find everything just to hit back on A&V. Disappointing.

Following recent conversations, emails (as attached) and the meeting held at our Brighton office on the 25^th February 2021 we hereby issue the attached notice highlighting the subsidisation of A&V Building Solution Ltd. on site labour.

By return we request that you notify us of your proposed forthcoming labour levels. Please note, the attached does not alleviate A&V Building Solution ltd. of any contractual obligations, A&V Building Solution ltd. are to continue to work towards the close out of their works.

Trust you will find this self-explanatory however, should you have any questions please do let us know.

Further to recent correspondence between yourself and Mr Adam Hill and Mr Andrew Macey (email “Schedule with floor plates delays” From A. Hill @ 17:39 on Tuesday the 9^th March 2021), J&B Hopkins ltd. have become increasingly concerned about A&V Building Solution ltd.’s on-site labour levels. This is now negatively effecting programme and subsequently our ability to deliver our contractual obligations to our client.

Due to this, J&B Hopkins Ltd. are left with no alternative but to supplement A&V Building Solution ltd. on-site labour with that of our own. We request that A&V Building Solution ltd. continue to work to deliver their contracted works and obligations to the best of their endeavours and advise by return as to how A&V Building Solution ltd. propose to complete such.

Please note; In accordance with clause 7.4 of the Sub-Contract all costs associated with the supplementation of on-site labour and its associated management costs will be contra charged to A&V Building Solution ltd. and as such will therefore contribute to the forming of the Sub-Contract final account.

Thank you for your response and letter as this comes as a surprise to me.

First of all can you identify the areas where we are delaying the project?

I will need specific areas and proof of QA acceptance as well JBH notification for me to start works in those areas so then I can accept this areas and place men to work on those areas that you are saying we start delaying you in.

Currently I have 9 men on site today in all the areas that work is available to me.

I also want to bring into your attention that as of tomorrow 12/03/21 indicates that:

I will issue to you again a proper breakdown showing and identifying exactly the delays my team have experienced by no fault of my own but the Main Contractor where floor plates and Podiums were not ready in time as we agreed on the programme and 2 weeks look ahead together with an invoice.

I just want to make it clear that there has never been a delay from A&V on site and we have … are constantly keeping up with our works.

I am happy to walk on site with you so that you can show me exactly where we are delaying you!?

Also last week Adam Hill phoned me and told me that he know that A&V never delay the project and he also said as of good gesture that he will send out some men on the project at no cost or contra charge for A&V to help us out which I appreciated and agreed to.

Why now all of the sudden 180° change?

I will be onsite early Monday morning.

as you and I discussed, JBH need to deliver a project in line with programme/lookahead and efficiently as possible. this means working as we have throughout the project with advance works and early access to areas that can be progressed.

SVP and RWP form essential works that help a) weather the building, b) sequence with the other trades for building walls, thus releasing the work areas to JBH 1st Fix etc. we must continue to progress SVP and RWP.

reducing labour, and by not maximising the site hours, at this stage where all works in Towers and Podiums must be advancing on the dates provided and in the sequence of working, this does not provide sufficient resource to cover all of the available work.

our QA system records if the workface is available to us, in areas such as podiums we are working to dates, and JBH /AV are progressing/advancing works/sequencing with trades, the absence of a QA acceptance in these areas does not constitute rejection nor does it exclude JBH/AV to advance the work in line with the dates, these areas are well published on mark up drawings and all JBH and subcontractor have been briefed with progressing these areas specifically to get heating and radiators fitted during first fix, to enable the start of our flushing/commissioning.

the QA closing of areas remains due on the last day of each agreed duration.

I understand and have been discussing with you the issues AV have and how that needs to be presented to us.

please issue the information as a matter of priority.

if you can get me the Names over the weekend I can review the Biosite actions needed.

As you are aware our contract period for carrying out and completion of the Sub-Contract Works on site was for 52 weeks. The Key Date for Completion and handover of all works on or before 12th March 2021 and that period has now expired and the works are still incomplete.

The reasons for the delays have previously been detailed to you but in brief terms the areas your programme detailed to us as being available were in fact incomplete. A schedule previously sent to you detailed the locations and time periods of delay marked in red. We attach a further schedule particularising the critical delays and these total 74 days.

This period of delay resulted in return visits to complete the works to areas unavailable and as such the works were not able to be undertaken in an economical fashion. This has resulted in us incurring additional costs to which we seek to recover. The attached further schedule details the labour levels in more detail and the corresponding delays for your consideration.

The effect of the above is that the return visits and uneconomical working from that which Hopkins programmed to be available but was in fact not available once on site has incurred us in additional costs. In respect to Hopkins delays we consider that we have only been 65% efficient with our operative installation works. As such £268k of the £413k claimed to date for our works have been installed in the manner that we were anticipating. Unfortunately, the remaining 35% (£144k) has not been SO productive and has resulted in a 33% additional time period to complete those works. On this basis in real terms this is a £45K cost that we have incurred to which we would request is paid for by Hopkins as loss and expense. This cost we have included in our current valuation application but would be grateful of your confirmation and/or instruction that this issue of increased costs for delays and the sum claimed will be paid.

In regard to the remaining works which is predominately to Podiums 1 and 2 again these works should already be complete and are beyond our 52 week programme as a result of Hopkins delays. As we understand you are proposing proceeding with these over the next 5 months. We have discussed the additional costs in brief terms but am able to advise this in more detail below.

The Podium works similar to the Towers have not been made available as Hopkins's programme due to delays beyond our control and thus we have been working uneconomically with return visits. The value remaining for the works to the podiums is circa £34k from an original sum of circa 120k but this as we understand is planned to be installed over a further 5-month period. The original works were for a 10-week period, so it is a little unclear as to why we are expected to continuing installing our works over a longer period. The remaining balance of £34k of labour from our contract to complete this section of the works is approximately 136-man days so effectively 6 men for 4 weeks. Once the 4 weeks has elapsed if the works are incomplete this will require additional instructions for the additional labour.

As requested in terms of providing guidance on the additional costs that we would require instruction to continue for the full 5 month (20 weeks) period on the basis of on average 6 men for the remaining 15 weeks this would equate to a an additional sum of circa £113k. Similarly, if there were 12 men for half the period this would still equate to £113k. The remaining £34k from the original contract sum would also require to be paid. These figures are on the basis that reasonable [and] economical works can take place and there are no further delays.

We look forward to your further instructions and agreement to costs prior to proceeding further.

In addition to the above the works have overrun the 52-week and key date period and A&V request an extension of time to cover the overrun periods currently advised by Hopkins as being 5 months. In additional for the 5-month period we will require additional preliminaries costs of £25k and we look forward to your further instructions and agreement to costs prior to proceeding further.

Mr Brown letter 10th March 2021

We are in receipt of Mr Brown letter and would reject the contents of the letter and any assertion that A&V have any responsibility for the delays or additional labour and/or costs that you refer to. As detailed within this and previous correspondence you are aware of the project overrun which is Hopkins responsibility. In addition, Hopkins has requested a variation to the works (extending the contract period, acceleration etc) and sought A&V costs for the variation prior to instructing and that process continues as described above and look forward to your confirmation in accordance with Clause 8.5 and/or 8.6.

Furthermore clause 7.4 provides for a 7 day period of notice being given, and if resultant actions are not undertaken; it shall be J & B Hopkins prerogative to supplement the on-site labour requirements for the Sub-Contractor recovering all resultant costs as a deduction from the Sub-Contractor account. The notice you refer is dated the 10^th March 2021 and therefore any decisions or actions taken by Hopkins to supplement labour would at the earliest not be applicable until the 17th March 2021. As such any supplementary labour provided thus far and up until the 17^th March 2021 is not the responsibility of A&V [and] any deductions would be deemed unlawful.

Notwithstanding the above and appreciating you are attempting to catch up with the delays you may also wish to consider our alternative proposals as follows:

In the alternative should you wish to provide your own alternative proposals please provide these for our consideration by return.

I trust that the above meets with your approval and look forward to your response/instructions accordingly so that this matter can be progressed to an amicable conclusion.

Further our recent communication, please find the [attached] A&V Building Solution Notice with our alternative agreement proposal as Seth requested on 11th March 2021 together with schedule particularising the critical delays.

Please note that A&V Building Solution will be working on site for the next 7 days of the dated letter.

By return we request that you notify us with your response/instruction accordingly

Further to recent correspondence dated 10th of March 2021 we hereby note that A&V Building Solution ltd. [have] failed to offer the required on-site resource to maintain programme and close out available workfaces.

As such, as of the 17th of March J&B Hopkins Ltd. have supplemented A&V Building Solution ltd. workforce with that of our own. J&B Hopkins Ltd. will continue to monitor and log this over the coming weeks and will advise in due course as to cost associated with such. We request that A&V Building Solution ltd. offer the required resource to close out these workfaces to avoid any further subsidisation.

Please note; In accordance with clause 7.4 of the Sub-Contract all costs associated with the supplementation of on-site labour and its associated management costs will be contra charged to A&V Building Solution ltd. and as such will therefore contribute to the forming of the Sub-Contract final account.

Further to the letter issued on the 17th of March 2021 J&B Hopkins Ltd. hereby offer formal response to A&V Building Solution Ltd.

With reference to the contract period, whilst we note the contract period has now elapsed, prior to your letter dated 15th March 2021 J&B Hopkins Ltd. had not received any request for an extension of time, nor have we had any build up to the costs you have mentioned within the letter. Nothing submitted to date falls in line with clause 8.4 of the subcontract and therefore limits our ability to understand and value your claim.

Whilst the duration has indeed changed the scope and works themselves as tendered by A&V Building Solution Ltd. have not. We therefore see no reason as to why A&V Building Solution Ltd. have any entitlement to additional monies for such. We would remind yourselves that A&V Solutions Ltd. [have] an obligation to manage productivity of staff and adjust numbers to suit programme.

The records you have submitted neglect to show the other work faces your operatives were working on at the time, at no stage have A&V Building Solution Ltd. been placed in a situation [where] there were no workfaces available to progress.

Throughout the duration of the project J&B Hopkins Ltd. have worked very closely with all our subcontract supply chain including A&V Building Solution Ltd. to ensure that sufficient workfaces are available, whilst this is not always within our control, J&B Hopkins Ltd. have gone to great lengths to provide A&V Building Solutions ltd. with visibility of workface availability & works that will be coming available, in turn putting additional pressure on our own preliminary resource. We would also like to remind you that the 2 week look ahead is a fluid programme initiated by the client and referenced within the head contract that A&V Building Solution Ltd. are deemed to be fully aware of at time of tender and subsequent contract agreement.

In regard to the proposed claim for additional cost associated with preliminary resource, J&B Hopkins Ltd. the aforementioned letter does not meet the level of information required of the sub-contract agreement that has prohibited a meaningful review. Once we have received such we will review, assess, and respond accordingly.

With reference to J&B Hopkins Ltd. letter dated 10th March 2021 in relation to the subsidisation of A&V Building Solution Ltd. labour. We acknowledge that any labour subsidised prior to the 17th of March 2021 can and will not be counter charged to A&V Building Solution Ltd. However, we disregard your claim that A&V Building Solution Ltd. have not contributed to the delays on site nor the requirement for J&B Hopkins Ltd. having to initiate such clause. At the time of writing A&V Building Solution Ltd. Have multiple areas of incomplete works, both physical works on site and subsequent Q&A signs off that are now in delay. A&V Building Solution Ltd. have neglected to supply sufficient labour to allow the close out of these works, therefore, J&B Hopkins Ltd. Have been left no alternative on the matter to maintain programme and the pace of the project.

Insufficient labour for the available workfaces & defect closures has been continuously highlighted over the past months by J&B Hopkins Ltd. and A&V Building Solution Ltd. have refused to act in accordance with the site requirements. Alongside this A&V Building Solution Ltd. have been asked multiple times to maximise their own productivity by ensuring their operatives work full days on site. Upon review of the Biosite login it is clear that a vast majority of A&V Building Solution Ltd. labour are leaving site between 3-4pm each day, that is a loss of 2-3 hours productivity per person, per day that only further compounds A&V Building Solution Ltd. inability to close out available workfaces and control its own labour.

We also highlight the vast number of suspension or works notices (SOWN) issued to J&B Hopkins Ltd. by the client for either defective or unsafe acts on behalf of A&V Building Solution Ltd. At the time of writing there have been approximately 10 of these SOWN notices issued by our client that are the sole responsibility of A&V Building Solution Ltd.’s failure or neglect. Each of these notices results in lost time and additional cost for J&B Hopkins Ltd. both in terms of physical works on site and preliminary resource associated with closing these items on behalf of A&V Building Solution Ltd. To date J&B Hopkins Ltd. have carried these costs and disruption to mitigate site progress however, rest assured A&V Building Solution Ltd. are fully culpable for such, further negating A&V Building Solution Ltd. claim that they have not caused delay to the completion of works.

Given the above we are unable to agree with either of your requests for additional monies at this stage

Finally, we understand that you have advised various members of our site team that you will be withdrawing from site on Monday, we urge you to reconsider this position and continue to [fulfil] your contractual obligations. Should you withdraw from site we will treat this as a blatant breach of the subcontract with resultant costs being levied and recovered from A&V Solutions ltd.

I-Auditor is a piece of electronic software that JBH selected for our QA manager to use as an inspection tool so that the JBH site management team and its subcontractors could use it for inspections, to flag up any issues and resolve problems together. The system worked to capture and provide a corrective action platform for the installation teams. The system shares and stores digital checklists. For example, on plumbing systems we need to pressure test the pipework using a pressure gauge and this system helps log and record that test functions have been successful, and that the pipework was tested to and held the agreed pressure. I remember that there was a concern when Alex Paduraru left site that he could still access l-Auditor and potentially tamper with the records on the system. As a precaution, his access was therefore removed. Alex would have had a level of access to allow him to add information and sign documents and modify information previously submitted.

Access to l-Auditor was controlled by the QA manager Wayne Reed who had the management level administrator rights. A&V's licence was re-assigned so we could carry on handing areas over to our QA team. The l-Auditor software captured when an area was handed over to us for 1st fix which was an opportunity for our site management team to go and inspect the area to see if the area was complete and available for JBH's installation works. This function of area acceptance was used by JBH during discussions with BYUK at Lean Meetings where we looked at the next two weeks' work activities and planned works for the subcontract installation teams. I-Auditor therefore facilitated workflow management and enabled JBH to manage resources in line with programme requirements. I-Auditor was not an installation programming tool for our supply chain and physical works and QA tasks could be progressed and completed without access to l-Auditor. It was also not needed for A&V to access site which was controlled by BYUK Bio-site readers.

We were told you wouldn’t carry out any further QA works so we had to employ another supervisor and give him your licence in the meantime.

Further to recent correspondence dated 19th of March 2021 we hereby note that A&V Building Solution ltd. have failed to return to site with any operatives. As such, A&V Building Solution ltd. last productive day is recorded to be that of the 19th of March 2021.

We hereby confirm that A&V Building Solution Ltd. are now deemed to be in breach of their contractual obligations, as such J&B Hopkins Ltd. will continue to undertake A&V Building Solution Ltd. works on their behalf.

All incurred loss and expense to J&B Hopkins Ltd. associated with this breach of contract will be continually tracked and recorded for recovery from A&V Building Solution Ltd.

Paragraph 5.0 (a)

Without instructions and being beyond the Contract completion date of the 12^th March 2021 (and despite A&V request for instructions prior to and on 15^th March 2021 J&BH chose to force upon A&V supplementary labour and undertake the remaining works themselves being a breach of contract as clause 7.4 and 15.1 and requires due formal “Notice” which has not been provided. Failure and/or breach clause 15.1 by J&BH employing others to undertake works without prior 7 day “notice” and/or advising of any purported breaches of failures. J&BH unreasonably and without agreement and/or correctly served Notices sought to forcibly undertake A&V contract works by engaging others.

Paragraph 5.0 (b)

Failure and/or breach by J&BH of clause 8.5 and 8.6 to provide instructions beyond the contract completion date of 12^th March 2021 relating to A&V correspondence/quote dated 15^th March 2021 (issued in accordance with clause 8.4).

Paragraph 5.0 (c)

Failure and/or breach of clause 11.1 for not providing “notice” to suspend the works from 30^th March 2020 to 1^st June 2020.

Paragraph 5.0 (d)

Failure and/or breach of clause 13.2 and 13.3 to extend the contract period for delays clause 11.1 above and issue of revised programmes and 2 weeks look ahead programmes … and unreasonably and deliberately preventing any further works being undertaken by A&V by employing others to complete A&V works and removing A&V from the IAuditor system.

For those who do not know me I am the QA manager for JB Hopkins here at the Brighton office.

You are all sub-contractors on the UoB Moulsecoomb project and as such I would like to introduce you to the QA system we will be using on the project. Attached is the product overview of IAuditor which is an app that we will be using for all our QAs, pressure testing and snagging on our project…

Please find attached an example of the QA for 1^st fix mechanical.

This was carried out for tower 1 level 3. As you can see photos are taken of everything under the sections that they are pertaining to and notes attached to strengthen the position taken. This is all evidence gathering to prevent any comebacks further down the line. This document protects yourselves as well as JBH.

We need to set aside time for any training that you and Ian require to accomplish this level of QA checking. I feel that you guys are onboard now with the testing we just need to get the QA sorted.

Please be aware that this is not a box ticking exercise it is important for handing over areas on time snag free and demonstrating a rigorous process of QA.

Paragraph 5.0 (e)

Failure and/or breach of Contract clause 9.8 and 9.10 to certify the Practical Completion of the works and the subsequent release of retention monies and the process of the final account. Practical Completion was not achieved until 5/10/21 …. 6 months and 3 weeks after AS&V completion date.

Paragraph 5.0 (f)

A breach preventing A&V from undertaking the works to actual completion by engaging others and removing A&V from the IAuditor system without agreement. Removing A&V’s access to the IAuditor system prevented A&V from being able to properly progress the works…

Paragraph 5.0 (g)

Paragraph 23 of the Court of Appeal Judgment CA-2022-000848 dated 27 January 2023 judged that J&BH had breached clause 20.3 of the Sub-Contract.

In my view, the first adjudication was made more complicated than it needed to be, in particular because JBH’s solicitors raised a number of unmeritorious jurisdictional challenges and generally failed to provide the sort of assistance to a lay adjudicator that I would expect. In the event, the jurisdictional challenges were correctly rejected by the adjudicator at [115] onwards of his decision of 19 January 2022.

The judgment given at the hearing on 12 April 2023 is at [2022] EWHC 1186 (TCC). Perhaps because of the way in which the matter had come before him, the judge did not deal with the adjudicator’s decision at all, save to note at [2] that the adjudicator’s findings were not binding on him. He said that he would “approach the matter on the footing of my interpretation of the documents and of the submissions before me”. He did not therefore approach the hearing from the starting-point that there was an outstanding adjudication decision in AVB’s favour, and that JBH were in a breach of clause 20.3 of the Sub-Contract in failing to make payment of the sum due to AVB.

So, as at the hearing on 12 April 2022, the position was that JBH were in breach of contract because they had not paid the first adjudicator’s decision and that, in the light of the ‘pay now, argue later’ mantra, that should have been the first order of business. Having determined the enforcement position, the secondary question for the judge was whether AVB should lose their entitlement to enforce the decision in the first adjudication on the basis of JBH’s Part 8 claim.

Although I consider that AVB were entitled to enforce the first adjudicator’s decision back in April 2022, that entitlement has long since been overtaken by events and, in particular, by the result of the second Final Account adjudication, which result JBH have applied to enforce. Moreover, as Mr Frampton correctly noted, no part of this appeal sought the payment of any sum by JBH to AVB, so this court does not have the power to award any such sum in any event. This all reflects the largely academic nature of this appeal, to which I referred at the outset of this judgment.

Conclusion on breaches

That J&BH was in breach of Clause 7.4 in supplementing A & V’s labour on site before the expiry of the 7-day notice period;

That J&BH was in breach of Clause 13 in not granting an extension of time;

That J&BH was in breach of Clause 20.3 in not treating Mr Blizzard’s decision as binding; and, most importantly,

4, That J&BH was in repudiatory breach of the sub-contract in denying A & V access to the IAuditor system.

I went around the site with Julian Smart (JBH’s Site Manager) to establish what works remained outstanding and what labour levels would be needed to complete the outstanding works. In order to help manage the remaining works, we made sure that photographs were taken of incomplete works and the status of A&V’s works was recorded by reference to the drawings.

Item 1.0 – Podium 1 Commercial, Level 00, Install lateral out runs

“Podium 1 – continued –Install all distribution pipe runs on levels 1 and 2 including all rain waters and soils. Pipe works will include installing and pressure testing of all Heating & domestics & drainage pipework distribution runs in all areas area’s [sic] concerned with podium 1.”

JBH [Trial Bundle 5, page 2208-2213] JBH does not detail any evidence of outstanding works for this item and/or area.

Mr Davidson in his witness evidence on trial day 3 confirmed within his paragraph 17 that he had undertaken an inspection and report with Julian Smart to detail all of the remaining outstanding works and that there were no works outstanding to this level. Upon me questioning this for a second time Mr Davidson reconfirmed this statement. Mr Davidson confirmed the photographs were from that inspection on the 22^nd March 2021 and that Julian Smart coordinated the document as Mr Davidson was not very good with technology.

Although I was not able to undertake a record of the completeness of this item as a result of being removed from the IAuditor system on the 22^nd March 2021 by JBH (an act of prevention), this item should be paid in full.

Item 2.0 – Podium 1 Commercial, Level 01, Install lateral out runs

JBH [Trial Bundle 5, page 2208 (drawing with 16 photographs) and 2213 (list of 16 items)] JBH does not detail any outstanding works for half of the floor area to this item and only to drawing sheet 1of 2.

[Trial Bundle 5, page 2213] with its list of items JBH only refers to issues of outstanding works to 9 of the items.

Mr Davidson in his witness evidence on trial day 3 confirmed within his paragraph 17 that he had undertaken an inspection and report with Julian Smart to detail all of the remaining outstanding works and that there were only works to half of the floor outstanding to this level (only sheet 1 of 2). Upon me questioning this for a second time Mr Davidson reconfirmed this statement. Mr Davidson confirmed the photographs were from that inspection on the 22^nd March 2021 and that Julian Smart coordinated the document as Mr Davidson was not very good with technology.

A&V contract value for this item is £13,000.00 so therefore based on Mr Davidson evidence, the maximum value outstanding for works remaining could only be half of that in the sum of £6,500.00.

Within JBH assessment in application 12 [trial bundle 4, page 1658] for works up to January 2021 JBH had already valued the entire floor level at 50%.

A&V continued with works to the podiums into February and March 2021 therefore the level of install would have increased.

The evidence of photographs and schedule of the 22^nd March 2021 Trial bundle 5, page 2213 only details comments for 9 items outstanding and these all of a minor nature and not really relating to matters of “lateral out runs” and only likely to be a cost of approximately £1,000.00 to complete

Although I was not able to undertake a record the completeness of this item as a result of being removed from the IAuditor system on the 22^nd March 2021 by JBH (an act of prevention), the court should consider the minor nature of works to complete as only being approximately £1,000.00. A&V would contend that they should be paid in full for this contract item as by JBH acts of prevention in taking over A&V works without permission and not awarding further time from the contract period of 12^th March 2021 prevented this from being completed.

Item 3.0 – Podium 1, Level 01, Install risers per room with Heating, Domestic and SVP and

Item 4.0 – Podium 1, Level 01, Connect radiators in each room 1 ^st and 2 ^nd fix

[Trial bundle 5, page 2208 (drawing with 16 photographs) and 2213 (list of 16 items) JBH does not detail any outstanding works for half of the floor area to this item and only to drawing sheet 1of 2.

[Trial bundle 5, page 2213] with its list of items JBH only refers to issues of outstanding works to 9 of the items.

Mr Davidson in his witness evidence on trial day 3 confirmed within his paragraph 17 that he had undertaken an inspection and report with Julian Smart to detail all of the remaining outstanding works and that there were only works to half of the floor outstanding to this level (only sheet 1 of 2). Upon me questioning this for a second time Mr Davidson reconfirmed this statement. Mr Davidson confirmed the photographs were from that inspection on the 22^nd March 2021 and that Julian Smart coordinated the document as Mr Davidson was not very good with technology.

A&V contract value for this item is £22,800.00 so therefore based on Mr Davidson evidence, the maximum value outstanding for works remaining could only be half of that in the sum of £11,400.00.

Within JBH assessment in application 12 for works up to January 2021 JBH had already valued the entire floor level at 50%.

A&V continued with works to the podiums into February and March 2021 therefore the level of install would have increased.

The evidence of photographs and schedule of the 22^nd March 2021 [Trial bundle 5, page 2213] only details comments for 9 items outstanding and these all of a minor nature and only likely to be a cost of approximately £2,000.00 to complete

Although I was not able to undertake a record the completeness of this item as a result of being removed from the IAuditor system on the 22^nd March 2021 by JBH (an act of prevention), the court should consider the minor nature of works to complete as only being approximately £2,000.00. A&V would contend that they should be paid in full for this contract item as by JBH acts of prevention in taking over A&V works without permission and not awarding further time from the contract period of 12^th March 2021 prevented this from being completed.

Item 5.0: Level 01, Test SVP – Domestic and Heating pipe

Item 32.00: Podium 2 Commercial, Level 00, Install lateral out runs

Mr Davidson in his witness statement on trial day 3 confirmed within his paragraph 17 that he had undertaken an inspection and report with Julian Smart to detail all of the remaining outstanding works and that there were no works outstanding to this level. Upon me questioning this for a second time Mr Davidson reconfirmed this statement. Mr Davidson confirmed the photographs were from that inspection on the 22 March 2021 and that Julian Smith coordinated the document as Mr Davidson was not very good with technology.

Although I was not able to undertake a record [of] the completeness of this item as a result of being removed from the IAuditor system on the 22^nd March 2021 by JBH (an act of prevention), this item should be allowed in full.

Item 33.00 Podium 2 Commercial, Level 01, Install lateral run outs

Mr Davidson in his witness evidence on trial day 3 confirmed within his paragraph 17 that he had undertaken an inspection and report with Julian Smart to detail all of the remaining outstanding works Upon me questioning this for a second time Mr Davidson reconfirmed this statement. Mr Davidson confirmed the photographs were from that inspection on the 22^nd March 2021 and that Julian Smart coordinated the document as Mr Davidson was not very good with technology.

A&V contract value for this item is £10,000.00. A&V have claimed 80% complete. These works being major runs of brackets and pipework’s above corridor areas. Mr Frampton and I having a long discussion regarding this during my questioning. The court has since been provided with a video taken by myself of the podiums on the 12^th March 2021 showing these completed pipe runs etc.

(e)Within JBH assessment in application 12 for works up to January 2021 JBH had already valued the entire floor level at 25%. Therefore, the maximum works to complete at that time was £7,500.00.

A&V continued with works to the podiums to this level January into February and March 2021 therefore the level of install would have increased.

The evidence of photographs and schedule of the 22^nd March 2021 [Trial bundle page 5, pages 2211 and 2212] details comments for 49 items outstanding for the entire podium 2 level 1and in A&V opinion these all likely to be a cost of approximately £2,000.00 to complete. From the photographs presented at trial and reviewed and evidenced by Mr Frampton these clearly show quite an element of A&V works already installed.

Many of the items refer to pod connections, this an item relating to the install of the connections being separately fabricated by A&V within variation item 22 to which I explained within my cross examination by Mr Frampton.

Much of the work outstanding would require an instruction for a return visit due to changes in design, incomplete walls to the pods described by Mr Davidson in his cross examination “The podiums were not ready, pods not built, no walls and JBH wouldn’t accept areas”

Although I was not able to undertake a record the completeness of this item as a result of being removed from the IAuditor system on the 22^nd March 2021 by JBH (an act of prevention), the court should consider the works to complete this Podium 2 Level 1 works as only being approximately £2,000.00. A&V would contend that they should be paid in full for this contract item as by JBH acts of prevention in taking over A&V works without permission and not awarding further time from the contract period of 12^th March 2021 prevented this from being completed.

Item 34: Podium 2 level 01 Install risers per room with Heating, Domestic and SVP and

Item 35: Connect radiators in reach room 1 ^st fix and 2 ^nd fix

Trial bundle 5, page 2209 and 2210 (2 drawings with photographs) and 2211 and 2212 (list of 39 items)

Trial bundle 5, page 2211 and 2212 with its list of items JBH refers to issues of outstanding works to 49 of the items.

Mr Davidson in his witness evidence on trial day 3 confirmed within his paragraph 17 that he had undertaken an inspection and report with Julian Smart to detail all of the remaining outstanding works. Upon me questioning this for a second time Mr Davidson reconfirmed this statement. Mr Davidson confirmed the photographs were from that inspection on the 22^nd March 2021 and that Julian Smart coordinated the document as Mr Davidson was not very good with technology.

A&V contract value for this item is £26,400.00. A&V have claimed 70% complete.

A&V continued with works to the podiums at this level from January into February and March 2021on an uneconomical basis at the behest of JBH and their 2 weeks look ahead therefore the level of install would have increased.

The evidence of photographs and schedule of the 22^nd March 2021 [Trial bundle page 5, 2211 and 2212] details comments for 49 items outstanding for the entire podium 2 level 1and in A&V opinion these all likely to be a cost of approximately £5,000.00 to complete. From the photographs presented at trial and reviewed and evidenced by Mr Frampton these clearly show quite an element of A&V works already installed. In many instances the pipes were installed, just final connections with crimping etc. Mr Frampton and I having quite a discussion about crimping pipes. Mr Harman later during his cross examination confirming that crimping was acceptable but not his preferred method of pipe joints.

Many of the items refer to pod connections, this an item relating to the install of the connections being separately fabricated by A&V within variation item 22 to which I explained within my cross examination by Mr Frampton.

Much of the work outstanding would require an instruction for a return visit due to changes in design, incomplete walls to the pods described by Mr Davidson in his cross examination “The podiums were not ready, pods not built, no walls and JBH wouldn’t accept areas”

Although I was not able to undertake a record the completeness of this item as a result of being removed from the IAuditor system on the 22^nd March 2021 by JBH (an act of prevention), the court should consider the works to complete to the entirety of Podium 2 Level 1 as only being approximately £5,000.00. A&V would contend that they should be paid in full for this contract item as by JBH acts of prevention in taking over A&V works without permission and not awarding further time from the contract period of 12^th March 2021 prevented this from being completed.

Trial bundle 5, page 2209 and 2210 (2 drawings with photographs) and 2211 and 2212 (list of 39 items)

Trial bundle 5, page 2211 and 2212 with its list of items JBH refers to issues of outstanding works to 49 of the items.

Mr Davidson in his witness evidence on trial day 3 confirmed within his paragraph 17 that he had undertaken an inspection and report with Julian Smart to detail all of the remaining outstanding works Upon me questioning this for a second time Mr Davidson reconfirmed this statement. Mr Davidson confirmed the photographs were from that inspection on the 22^nd March 2021 and that Julian Smart coordinated the document as Mr Davidson was not very good with technology.

A&V contract value for this item is £1,000.00. A&V have claimed 70%.

A&V continued with works to the podiums into February and March 2021 therefore the level of install would have increased.

The evidence of photographs and schedule of the 22^nd March 2021 [Trial bundle 5, page 2211 and 2212] details comments for 49 items outstanding for the entire podium 2 level and do not generally detail incomplete radiator works.

Although I was not able to undertake a record the completeness of this item as a result of being removed from the IAuditor system on the 22^nd March 2021 by JBH (an act of prevention), the court should consider the works to complete to the entirety of Podium 2 Level 1 as only being approximately £300.00. A&V would contend that they should be paid in full for this contract item as by JBH acts of prevention in taking over A&V works without permission and not awarding further time from the contract period of 12^th March 2021 prevented this from being completed.

Item 36: Podium 2 Level 01, Test SVP – Domestic and Heating Pipe Contract

A&V have not undertaken this item, A&V would contend that they should be paid in full for this contract item as by JBH acts of prevention in taking over A&V works without permission and not awarding further time from the contract period of 12^th March 2021 prevented this from being completed.

Items 6.0 to 31.0 and 38.00 to 45.00: Works to Towers

Trial bundle 5, page 2208-2213 JBH does not detail any evidence of outstanding works for this item and/or area.

Prior to the dispute JBH had valued many of these items as complete or a high percentage complete.

Mr Davidson in his witness evidence on trial day 3 confirmed within his paragraph 17 that he had undertaken an inspection and report with Julian Smart to detail all of the remaining outstanding works and that there were no works outstanding to the 3 towers. Upon me questioning this for a second time Mr Davidson reconfirmed this statement. Mr Davidson confirmed the photographs were from that inspection on the 22^nd March 2021 and that Julian Smart coordinated the document as Mr Davidson was not very good with technology.

Although I was not able to undertake a record the completeness of this item as a result of being removed from the IAuditor system on the 22^nd March 2021 by JBH (an act of prevention), this item should be paid in full.

Item 37.00: Preliminaries phase 1 – Towers 1 and 2; Podiums 1 and 2

A&V value this at 100% based upon the value for this item as it directly relates to the contract period on site being to the 12^th March 2021. Any time thereafter would require additional preliminaries and thus an instruction.

A&V’s position

A&V claims that item 37.0 was 100% complete and values it at £22,240.

A&V does not properly justify or evidence its position. A&V’s comment in the Scott Schedule is the same, verbatim, as for Item 1.0 (see paragraph 57 above).

This comment only goes to why the Works were incomplete. It does not address the extent of the Works which were incomplete.

The comment also contradicts A&V’s assessment. Given it accepts the works were incomplete, A&V cannot claim the full preliminaries sum.

As the claimant, and particularly when it accepts that the Works were incomplete, the burden is on A&V to demonstrate the extent and value of the Works it did complete.

JBH’s position

JBH assesses that item 37.0 was 75% complete, £16,680.

The difference between the parties is £5,560.

JBH’s assessment is a pro rata based on the progress made by A&V. JBH’s assessment aligns with its valuation of the extent to which A&V had completed the Tower 1, Tower 2, Podium 1 and Podium 2 works.

Specific tasks covered by the preliminaries which A&V had not completed included:

JBH’s overall position is that A&V had completed £243,500.95 of these works which had a total value of £345,760. That is 70%.

A&V’s claim is that it had completed £311,900, or 90%. 90% of the preliminaries of £22,240 would be £20,016.

Item 47.0: Preliminaries, Phase 2, Tower 3

Measured Works: Conclusions

Variations 6 and 21

This was discussed at some length at the trial. This item must not be confused with variation item 21 which relates to the separate instruction to cover the holes/slots in the concrete slabs, that not being part of A&V works. I explained that the service holes/slots holes to the concrete floor slabs were required to be covered as a result of a suspension by BYUK at the beginning of July 2020. This suspension required A&V and all other subcontractors of BYUK and JBH to attend a 2-day tool box talk specific to debris falling through floor service holes (trial bundle 4, page 1678). The creation of the initial holes, materials falling through the holes by others and the covering of the holes was not my responsibility. The talk was undertaken specifically because the works were suspended for 2 days by BYUK not by any of my actions.

Previously Adam Hill / JBH had agreed with me to pay for this item. It is only as a result of JBH actions in March 2021 that they purport to change their mind regarding payment.

Within the Blizzard adjudication the Adjudicator decided that as JBH had accepted this as a variation withing application 12 then this still confirms this as a variation.

JBH’s position

JBH rejects this alleged variation and values it at £nil:

JBH accepts that a suspension of works notification was issued by Bouygues. At 17:23 on 7 July 2020 (after A&V had left site) Bouygues issued a suspension of works notification because the holes through the floor slabs had not been covered up after the installed of the vertical pipes for the risers (“Penetrations not recovered [sic] after services installed.”) [3590] These services were installed by A&V, and it was its failure to cover up the holes. At 11.37am on 8 July 2020, Bouygues issued a further suspension of work notification specific to Tower 3 (A&V’s scope) because of the same unsafe working. Bouygues stated that there was a risk of “Falling objects, dust and debris can cause injury and health problems for operatives working below.” [3588] This was rectified by JBH (on behalf of A&V) by covering the holes, and by delivering tool box talks to operatives working on Towers 1 to 3 (including A&V). The attendees are recorded at [4219, 4220]. The SOWN to Tower 3 was lifted at 14:55 on 9 July 2020. The emails show that the SOWNs only affected Towers 1, 2 and 3; see [4217] and [4221]. In other words, the health and safety issue and resultant suspension concerned A&V’s scope. There was no suspension of Towers 4 and 5 where Watertight was working.

Adam Hill provided the following evidence in his first witness statement in the Final Account Adjudication [1700-1701]:

Given A&V caused the suspension, it is not entitled to any additional payment.

In any event, A&V has failed to comply with the condition precedents in clause 8.9 and 8.10 to any payment related to this stop work notices.:

As to quantum:

A&V never contested that there should be a cover over the open holes between the slabs for Health and Safety purporse, [sic] but the way JBH instructed A&V to undertake this was a variation. JBH agreed to provide A&V with plywood and carpenters tools (inappropriate for a plumbing firm). However, as a good gesture A&V did accept to do this work as per JBH instruction, unfortunately [sic], JBH failed to supply A&V with the mentioned items and A&V was physically forced to undertake this work [AP3/ page 354 - 362] A&V undertook the new process works including revisits as instructed by Andrew Macey. Hopkins failed to supply the plywood and multitool and A&V was forced to look on site after any small pieces of wood in order to cover those open holes between the slabs and utilising their own tools not JBH multitool as promised. A&V had no allownce [sic] for such work, as this Penetration Cover works was not included within the Scope of Works of the Sub-Contract. A&V consider that this variation should be honoured and paid in full in the sum of £8,000.00.

J&BH do not deny this works was undertaken. However, Hopkins’s commentary in the adjudication confuses the forming of holes through non-structural elements with that of providing additional temporary protection between concrete floors to be H&S compliant as requested by J&BH prior to completion of other works by other trades and the fire stopping company to the riser cupboards. The forming of holes through non-structural walls etc has been extensively undertaken by A&V throughout the works in partitions, ceilings and the like and that was included. The timber covers and hole forming is purely a Health and Safety requirement requested by J&BH for A&V to undertake. The floor aperture where this was to be undertaken was a concrete structural floor and A&V consider that this variation should be honoured and paid in full as this works was not part of their Sub-Contract scope of work.

This item relates to the penetration covers between floors. During my cross examination with Mr Frampton I re-confirmed that JBH had instructed me to undertake this work. I also noted the difficulty with the process. I agreed that I had initially agreed to undertake the early works as a good will gesture but as JBH became more aggressive in March 2021 then I withdrew the offer. We had to install these to all floors and not much reuse of boards was possible between floors.

JBH’s position

JBH rejects this alleged variation and values it as nil:

Variation 14: Kitchen copper pipework extension in T1, T2 and T3 on every floor

Variation 16: P1 L1 North Corridor High level install: 2 operatives @ £250/D: revisit

A&V had installed the Corridor high level pipework without having the side wall installed (as per JBH 2 weeks look ahead email 6 Nov 2020) [AP3/ page 118] Then the dry liners could not install the corridor side walls because of the A&V's installed pipework. So JBH instructed A&V to remove the pipework and to come back as a revisit to re-install the high level pipework once the walls were ready. A&V was first instructed to commence the works on Podium 1 Level 1 [which was H/L (high level) corridor] on 6 Nov 2020 [AP3/ page 118] A&V installed the high level pipework at that time as instructed, but then A&V had to go back and remove the pipeworks as this was clashing with dry liners and re-install the work again on 12 February 2021 as instructed by Paul James email [AP3/ page 130]. A&V consider that this variation should be honoured and paid in full in the sum of £2,500.00.

It is accepted that no formal instruction was issued but it is apparent from the commentaries from JBH detailed in the Scott schedule evidence that the works were requested to be undertaken. Within my cross examination from Mr Frampton, I recall advising of numerous revisits to the podiums to undertake alteration works and this was one of those.

During my cross examination by Mr Frampton, I confirmed that we had asked JBH managers to sign time sheets, but they refused. My claims were therefore based on the simple actual labour time spent on this item.

Variation 17: P1 L1 Main Riser Boosted meter set changed 1 Operative for 2 days @ £250/D

A&V had installed the booster pipework set within the Riser as per the drawings received at the tender stage. Then after installation JBH changed the design and asked A&V to change the install as per new (hand) drawing. Paul James (JBH) issued the new (hand) drawing via the Whattsapp [sic] Group on the 16 February 2021 [AP3/ page 352]. A&V had to remove the set from the inside of the Riser and re-install the set outside the Riser as per the Paul James (JBH) hand drawing. A&V consider that this variation should be honoured and paid in full in the sum of £500.00.

JBH’s position

JBH accepts rejects this item as a variation and values it at nil:

Variation 18: Repositioning of Heating IV; 1 Operative for 8 days @ £250/D (which is half of the actual 16 days as agreed with Mr Macey

Variation 19: Kitchen SVP-HDPE stack (batweld) extension and install extra 6 PRV on Domestic services in all 3 Towers (28 floors in total) A&V charged this work @ £258.07 per floor

Similar as variation 14 A&V could not install the HDPE pipework in full lengths at the first time of installation as no walls were fully erected [AP3/ page 348] so A&V had to install the main vertical HDPE pipe and come back as a revisit to extend the low level horizontal HDPE pipework once the walls were ready. JBH have previously been provided with the details for this variation. JBH accept this item as a variation [despite not doing so previously] and value this as 34% only as part of the Final Account Adjudication [AP3/ page 227] A&V consider that this variation should be honoured and paid in full as it was accepted.

JBH’s position

JBH accepts this Variation 19 is a variation but disputes the valuation:

JBH accept this as a variation but not for the sums claimed. During my cross examination by Mr Frampton, I corrected him on the amount of work required to undertake this. There were 4 sinks per floor in various locations. The time claimed was for finding materials, collecting materials making the pipes to the correct bends and then installing including that of the valves. Each of these were individual and over all towers floors and not just in one location. I did not recognise the application of Spons to value this work as this assumes continuous work in one location and/or a larger run of work, it was based on actual labour of 1 man per day per floor whom I saw undertaking the works during my site visits.

I repeated that we had asked JBH managers to sign time sheets, but they refused. My claims were therefore based on the simple labour time spent on this item.

Variation 22: Prefabrication of SVP for P2 L1. A&V charged for 1 Operative – 10 days of work @ £250/D.

There were approximately 100 of these Prefab SVP to undertake but at the time of JBH breaches A&V engineer had only undertaken 10-man days directly related to this instruction [AP3/ page 363] [£250 x 10 days = £2,500.00] JBH accept this item as a variation [despite not doing so previously] and value this as 30% as part of the Final Account Adjudication [AP3/ page 227] A&V consider that this variation should be honoured and paid in full as it was accepted.

JBH accepts that this item was a variation but challenges quantum:

JBH accept this as a variation but not for the sums claimed. During my cross examination by Mr Frampton, I advised that there had to be no joints, so these had to be made up on benches. These were not installed as Mr Frampton had assumed but just a variation to prefabricate some svp pipework. As there were numerous hold ups on the to the podiums and as we were waiting for instructions this work was good to keep an operative engaged. This was an actual instruction from JBH, and the works started on the 5^th March 2021and I saw this undertaken.

I repeated that we had asked JBH managers to sign time sheets, but they refused. My claims were therefore based on the simple labour time spent on this item.

Variations: Conclusion

The Sub-Contractor shall not be entitled to any adjustment to the Sub-Contract Sum, additional payment of any kind, costs, losses or damages however caused arising as a result of suspension of the Sub-Contract Works pursuant to this clause.

Issues

During the Blizzard Adjudication, JBH challenged Mr Blizzard’s jurisdiction. A&V has never obtained an order enforcing the Blizzard Decision. Nevertheless, taking note of the Court of Appeal’s comments on appeal (albeit not following any debate or submissions on the point), JBH does not maintain its challenge to Mr Blizzard’s jurisdiction.

The issue for the Court to determine is whether there was a binding settlement as to the sums due under the Blizzard Decision which included Mr Blizzard’s fees?

Was there a binding settlement as to the sums due under the Blizzard Decision?

The relevant chronology is as follows:

JBH’s position is that, in the circumstances, there was a binding agreement that the parties would not pursue any entitlements they each had in respect of the enforcement of the First Adjudication Decision, including any claim by A&V for Mr Blizzard’s fees and any claim by JBH for its costs of the discontinued enforcement proceedings.

A&V’s position is understood to be that there was a binding agreement, save in respect of the Adjudicator’s fees. That argument is understood to be based on the reservation in its email of 14 April 2022. However, the purported reservation was contrary to the remainder of the email and, therefore, ineffective.

In the well-known case of Butler Machine Tool Co Ltd v Ex-cell-o Corporation (England) [1979] 1 WLR 401:

Applied to this case, by confirming its agreement and/or providing a consent order A&V confirmed its agreement to JBH’s offer. No part of that offer included a term that A&V was still entitled to pursue JBH for proceedings relating to Mr Blizzard’s fees.

Alternatively, if the Court decides there was no binding agreement in respect of the Mr Blizzard’s fees. That must mean there was no binding agreement at all. JBH would remain entitled to its costs of the discontinued enforcement proceedings. Per CPR 38.6:

We confirm that the Enforcement claim HT-2022-000101 is withdrawn and both parties are to bear their own costs.

At the same time, we reserve our position regarding the Adjudicator’s fees. Your client is still liable for the Adjudicator fees as such we look forward to receiving the payment in full in regards of the Adjudicators fees including the interest.

The claim for loss of profits on the incomplete work at paragraphs 5.6 to 5.6.4 is denied:

As to quantum:

On closer analysis, suitable adjustments have now been made to remove labour that was placed on site to conclude further variations that were instructed beyond the date A&V left site.

The value of variations instructed to the Defendant by Bouygues after 22 March 2021 which included mechanical pipework service, as claimed by the Defendant from Bouygues was only £24,182.99. However, this figure included variations to Towers 4 and 5 and to the plumbing on the bathroom pods, supplied by the pod manufacture, neither of which were part of the Claimant's scope. The value of the variations to the Claimant's scope was £9,746.60 (Variations 76, 91, 94 and 98). This value claimed by the Defendant included materials and its overhead and profit. The labour value of these variations was only £3,450:

VO 76: Gym WC - Shower. Labour: £1,800.

VO91: 2nd fix radiators. Labour: 1 hr, £25.

VO 94: Costs associated with RFAs. Labour: 29 hours, £725.

VO98: Removal and reinstatement of Gym services. Labour: 36 hours, £900.

15% of £3,450 is £517.50. Further even for these variations, the Defendant could have engaged Watertight or its own labour to carry them out, particularly given the Claimant's lack of progress and resources in March 2021.

As a matter of law, it is not entitled to claim loss of profits on variations. In assessing how JBH would have acted in terms of issuing variations or other discretionary benefits to A&V, the Court must apply the minimum obligation rule. The Law of Contract Damages by Adam Kramer KC, explains in a section entitled “Would the Defendant Have Conferred a Discretionary Benefit or Extended the Contract” that where a claimant seeks damages for discretionary bonuses etc:

For the reasons set out above, A&V has not established any of the breaches on which it seeks to rely or that it was ready and willing to carry out the works.

These alleged losses are not, in any event, as a matter of principle recoverable:

Mr Paduraru’s time is, yet further:

JBH were aware and accept that A&V were solely working for JBH, and all of their resources were with JBH.

Adam Hill email 1^st March 2021 12:42 (Trial bundle 4, page 1672) Mr Hill and Seth Brown specifically were aware of A&V financial position as it noted: -

JBH being aware of A&V financial difficulties and without discussing the issues raised nor reasonably considering the merits of A&V position within A&V letter 15^th March 2021 chose deliberately to take an alternative course of action by employing other to undertake A&V works, remove them from the IAuditor system and generally unreasonably, erroneously, vexatiously and in breach of the contract make it difficult for A&V.

The consequences of JBH deliberate actions were that as A&V had all of its resources with JBH were unable to seek employment with other companies that they had any established relationship with. Those relationships were long over so A&V would have to start again. As has been heard within the trial A&V have tried to gain work for A&V but this has been difficult due to lack of working capital in March 2021as a result of inadequate payments for works genuinely undertaken (Blizzards £138K) that JBH had not paid for.

The QS responsible for valuing the works was Seth Brown and he and Adam Hill worked closely together. As a result of Seth Brown incorrectly and deliberately undervaluing A&V works as a result of:-

Judd letter 3^rd Feb 2022 refers to the impact that JBH actions were having on A&V cash flow (trial bundle 3, pages 1453 and 1454)

Judd letter 26/05/22 (trial bundle 3, page 1455) noted that JBH due to the breaches had a duty of care and were causing harm and damage to A&V.

A&V schedule for the losses is contained in trial bundle 4, page 1660.

The actions of JBH in March 2021, in the knowledge that they knew of A&V financial stress and that BYUK / JBH were behind programme, and were in the process of issuing significant variations, deliberately denied A&V the opportunity to undertake those works and thus would have removed the “financial stresses” upon A&V. The additional works A&V could have undertaken in the following 6 months to completion have been discussed during trial in the confirmed variations by Adam Hill of £228k and/or further works up to £405k (trial bundle 4, page 1709).

At the trial I have demonstrated attempts to gain work for A&V but to no avail. This is a direct consequence of JBH actions and breaches. Any monies I did have were subsequently used for legal actions against JBH, so I had no real working capital, this being directly caused by JBH wrong actions and the consequences thereto.

These actions were not remote from the contract but a direct result of the actions from the breaches of contract.

Paragraph 16 of the 17^th of October judgement:

As part of Mr Judd cross examination of Mr Geale, Mr Geale accepted that if the courts accepted the breach and loss his calculation for that loss would be £97,825.88 (Mr Geale report paragraph 9.7) Mr Judd noted that but advised that they would rely on A&V higher figures and commentary.

This is a matter for the courts review.

The court also has remedies as described within the claim as follows: -

Resulting from the Defendant’s (“JBH") Breach of Contract.

A recurrent theme in the application for permission is a challenge to my finding that A&V’s financial position was aggravated by J&BH’s conduct: that was, in my view, a statement of the obvious. J&BH’s conduct caused A&V real time financial problems as it had to deal with J&BH’s conduct which caused it cash flow problems as it dealt with the obstructions placed in the way of the Blizzard adjudication and the wrongfully issued Part 8 proceedings. Whilst the Court Appeal questioned the continuance of the appeal to that Court following the Smith adjudication, in the real world much damage had already been done.

In my judgment this is one of those cases where the Court should, exceptionally, grant a stay of execution of the judgment against A&V for the following reasons:

The Court of Appeal has ruled in paragraph [43] of its judgment (A&V Building Solution Ltd v J&B Hopkins Ltd [2023] EWCA Civ 54; 206 ConLR 184) that as at April 2022 J&BH was in breach of contract because it had not paid the first adjudicator’s decision “that should have been the first order of business”;

The Court of Appeal held (at paragraph [17]) that “the first adjudication was made more complicated than it needed to be, in particular because JBH’s solicitors raised a number of unmeritorious jurisdictional challenges and generally failed to provide the sort of assistance to a lay adjudicator that I would expect”;

J&BH launched Part 8 proceedings raising arguments which the Court of Appeal held to be wrong (overruling the decision of Eyre J.);

Whilst these actions were not the sole cause of A&V’s financial difficulties, I am satisfied on the evidence before me that the costs arising from these actions exacerbated A&V’s financial difficulties …

As a matter of law, these losses are also too remote to be recoverable: