Case No. 0LS79020

97. In the performance of TTPM’s role as “co-ordinator and guardian of the client’s interests”, efforts to finalise the contractual arrangements were of central importance. The execution of a contract is to be seen not as a mere aspiration but rather as fundamental. It is the contract that defines the rights, duties and remedies of the parties and that regulates their relationships. Standard-form contracts, such as the JCT contracts, are precise, detailed and structured documents; their elaborate nature reflects the complexities of the projects to which they relate and attempts to address the many and varied problems that can arise both during the execution of the works and afterwards. By contrast, letters of intent such as those used in the present case are contracts of a skeletal nature; they pave the way for the formal contract, once executed, to apply retrospectively to the works they have covered, but they expressly negative the application of most of the provisions of the formal contract until it has been executed. They do not protect, and are not intended to protect, the employer’s interests in the same manner as would the formal contract; that is why their “classic” use is for restricted purposes.98. TTPM was not under any absolute obligation to procure the execution of a formal contract, and it was not axiomatic that the exercise of reasonable care and skill would achieve that result. However, even if the unhappy outcome in this case (a project carried on from start to finish without an executed contract) does not of itself dictate the conclusion that TTPM was negligent, it is sufficient to suggest that something went wrong with the project. 99. Two matters give added significance to the outcome in the present case. First, the consistent evidence from both the witnesses of fact and the expert witnesses shows that it is extremely unusual for a building project of this scale to proceed from commencement to completion pursuant to letters of intent. Second, to anticipate findings that I make later in this judgment in connection with causation, I do not accept that Kier had taken any formal or informal decision not to sign the contract prior to September 2004. Why, then, was no contract signed? In answering that question, one should not (in my view) allow the difficulty of constructing a detailed prescriptive account of precisely what steps should have been taken and when they should have been taken to blind one to the big picture or obscure the question whether, taken as a whole, TTPM’s performance of its retainer met the required standard of reasonable care and skill. (Questions of causation are distinct from questions of breach of duty and I shall treat them separately.)100. In my judgment, TTPM failed to take the steps reasonably required of a competent project manager for the purpose of finalising the contract between the Trust and Kier and thereby was negligent and in breach of contract. In particular, by approaching the situation on the basis that the repeated issue of letters of intent was a proper response to the continuing difficulties regarding the execution of the contract, it effectively treated the contract as a dispensable luxury, though of course it would not have put it that way. Before setting out my conclusion in greater detail and explaining my reasons for it, I shall say something about the expert evidence relating to the issue of breach of duty.101. The assistance that I obtained from the expert evidence, though real, was limited. As I have mentioned, it is extremely rare for construction projects of any significance to be completed under letters of intent. In his criticisms of Dr Aldridge’s evidence, Mr Fraser tended to treat this fact as though it were something of a touchstone of an expert’s experience: a witness who had not come across such a situation in practice lacked the relevant experience that alone could qualify him to speak of the standard to be required of a professional in similar circumstances. I disagree. The situation in question is quite different from, say, a rarely encountered surgical procedure (the surgeon who has never come across the need for surgery in such-and-such a difficult situation and cannot speak from his or her expertise as to the acceptable technique). The situation in the present case is exceptional not because of the unprecedented nature of the construction project but because the very fact of completion of such a project under letters of intent is a mark of something having gone wrong—by no means necessarily on account of anyone’s negligence, but wrong nonetheless, because the intention and, in almost every single case, the outcome is that a building contract will be executed.102. This is relevant not only because it dulls the edge of the criticism made of Dr Aldridge but because it affects the analysis of the nature of the expert evidence that was given. It seems to me that neither expert was, properly speaking, giving evidence of a body of responsible practice or opinion within the profession of project managers. There was no relevant “body of practice”, other perhaps than the practice of striving in each and every case to procure a contract. What the experts were really doing was twofold: first, informing the court of the factors that would have influenced the judgement of a professional person faced with the circumstances that existed in this case (for example: the importance of the protection provided by a contract; and the nature of the risks and disadvantages if the contractor were to walk off site); second, expressing personal opinions or reactions, and thereby enabling the court to test the respective cases against what professionals would have expected at the material time. In my view, this was not, properly speaking, a Bolam case at all. If it is necessary to categorise it, I should think that it falls within the second qualification mentioned by Ward LJ in Michael Hyde & Associates Ltd v J.D. Williams & Co Ltd, with reference to Nye Saunders and Partners v Alan E. Bristow. That is not to say that the expert evidence in respect of breach of duty was of no assistance; but I have already mentioned the nature of the assistance it gave, and this is in my judgment a case falling well within the scope of the approach mentioned by Stephen Brown LJ in the Nye Saunders case.103. As an aside, I venture the observation that there are signs (as it seems to me) that Coulson J’s judgment in the Pantelli Associates case is being used for purposes for which it was not intended. Coulson J did not purport to provide an exhaustive analysis of the situations when expert evidence was required in support of a professional negligence claim; having regard to the facts and issues in the case, it was unnecessary for him to do so. The decision concerns not so much the need for expert evidence as the implications of the absence of such evidence in a case where it is necessary. On the issue of when expert evidence is required, reference should be made to judgments such as that of Ward LJ in the Michael Hyde & Associates case and that of HH Judge Humphrey Lloyd Q.C. in Royal Brompton Hospital NHS Trust v Hammond (No. 9).104. To the extent, however, that expert evidence as to the standard to be expected of project managers was of assistance in this case, I was more impressed by that of Dr Aldridge than by that of Mr Hinchliffe. Notwithstanding the attack to which he was subjected, I thought that he was entirely candid and objective in his evidence (the fact that, in a different case and on a different point, Akenhead J described his approach as “subjective” is not in point) and that his analysis of the situation faced by TTPM and the Trust in 2004 had greater realism than that of Mr Hinchliffe. One rather unsatisfactory feature of Mr Hinchliffe’s evidence was that his reports did not contain any express acknowledgment of the exceptional nature of the outcome in the present case (completion without a contract); it was Dr Aldridge who made clear how dysfunctional the project was in this particular respect. Another feature of Mr Hinchliffe’s evidence was that on more than one occasion at trial, when expressing disagreement with the course adopted by TTPM, he said that he was nonetheless “not sure” that TTPM’s behaviour was negligently wrong; listening to him, I had the impression that he was being a little coy on this point—a conclusion that is not altogether without significance, in the light of my view as to the relevance of expert evidence in this case. A third feature of Mr Hinchliffe’s evidence that left me unimpressed, albeit with regard to a different issue, was the basis on which he ultimately concluded that Kier would not have signed the contract at any material time; I shall turn to that evidence in connection with the issue of causation.105. I also reject the contention that in any relevant respect the standard of care and skill to be expected of a project manager now is different from what it would have been in 2004. It has not been convincingly explained why the standard should have changed or in what respects it has changed. The evidence before me gives no ground to suppose that the importance of a contract was less clearly perceived by the profession in 2004 than it would be now. (As mentioned below, Mr Talabani may have perceived it rather dimly, but I do not consider that this demonstrates anything about the standards of the profession.) In view of the nature of the functions under consideration, which involve the exercise of practical judgement and even common sense rather than questions of deficiency in a technical skill, I do not find it easy to understand how the applicable standard of care would be any different then from what it is now.106. Turning to the substantive question of breach of duty, I consider that TTPM failed adequately to focus on the matters that remained outstanding before a contract could be signed, to work urgently to resolve those matters one by one, to advise the Trust of the need to ensure that a contract was signed, and to bring proper pressure to bear on Kier and on the situation generally to that end. That pressure would include letting it be known that, possibly, the third letter of intent (Revision B, which ran to 27th February 2004) or, as I should be prepared to accept, a subsequent one for a short period would be the last and that the contract would have to be executed thereafter.107. Three preliminary observations are in point. First, to suggest that a contract should have been in place no later than April 2004 is hardly to suggest unreasonable haste. Works had started in early December 2003; by the expiry of the fourth letter of intent construction had been going on for about four months, and the works covered by the letters of intent accounted for more than 25% of the contract price. Second, it does not appear that there was any intractable problem preventing execution of the contract; the most difficult problem related to Shire’s claim for additional payment, but that too was capable of resolution if only it were addressed. (At this stage I am concerned only with issues of breach of duty, not with causation. Private reservations on the part of Kier, such as might have made it unwilling to sign a contract, fall for consideration in connection with issues of causation; though, as I shall explain later, I do not find that there were any such impediments at the material time.) Third, the time at which problems were in fact resolved is, of course, no sure guide to answering the question of when they might reasonably have been resolved.108. It is instructive to chart the outstanding issues that from time to time were being mentioned as preventing the execution of the contract during the period covered by the Trust’s allegations against TTPM. This may be done by supplementing some dates from the narrative set out above with TTPM’s minutes of the monthly progress meetings held with the Trust, Kier and the relevant consultants.(1) At the beginning of March 2004, the contract price and the VE schedule had been agreed. The remaining matters to be resolved were (i) finalising amendments to the contract; (ii) incorporation of the agreed VE information into the Contractor’s Proposal for inclusion in the contract; (iii) warranties to be given by sub-contractors and consultants to the Trust; (iv) Kier’s appointment of consultants, to include resolving Shire’s claim for additional fees; (v) a letter of comfort from AIB to Kier. The question of a warranty from Kier to AIB had not yet been raised by TTPM.(2) On 22nd March 2004 Mr Talabani identified several outstanding matters (paragraph 36 above): (i) warranties by sub-contractors and consultants to the Trust; (ii) a warranty by Kier to AIB; (iii) Shire’s fee claim; (iv) amendments to the contract wording; (v) incorporation of the agreed VE information into the Contractor’s Proposal. I am satisfied that the final two matters did not involve any issue between the parties; it was simply a question of putting uncontentious information into proper contractual form. (Thus the VE information had been settled by the end of February, although it was still being mentioned in the summer; see below.)(3) On 2nd April 2004 Kier identified three matters that could not be “parked” until after the signing of the contract (paragraph 38): (i) warranties; (ii) consultant appointments; (iii) consultant fees. The “warranties” were those required by the Trust from the consultants and contractors as well as that which AIB required from Kier.(4) By 20th April 2004 (paragraphs 39 and 42) the matters in issue were (i) the warranties to be provided to the Trust—Mr Talabani had still not forwarded the drafts—, (ii) the consultants’ appointments and (iii) the consultants’ fees.(5) By 6th – 9th May 2004 the only unresolved issues were (i) Shire’s claim for additional fees and (ii) the terms of the architect’s warranty (paragraphs 42 and 43). Issues concerning all fees other than Shire’s had been resolved.(6) The minutes for the monthly meeting on 19th May 2004 identified as outstanding matters only (i) the warranties and (ii) the consultant appointments—effectively the same as the position nearly a fortnight previously.(7) The minutes for the monthly meeting on 19th June 2004 identified as outstanding only (i) the consultant appointments and (ii) the VE package. This accords with Mr Talabani’s email of 7th June 2004 (paragraph 47), which had identified as outstanding the issues concerning Shire and the architect and the VE schedule.(8) The minutes for the monthly meeting on 7th July 2004 mentioned only Shire as an outstanding issue. That is also the sole issue mentioned in the letter of intent (Revision G) on 12th July 2004. The minutes for the meeting on 4th August 2004 also mention Shire as the sole outstanding issue. That is also what Mr Talabani thought on 26th August 2004: “The only thing holding up executing the contract docs is Shires appointment” (paragraph 54 above). In oral evidence Mr Talabani said that the VE package was also outstanding. That is correct, inasmuch as the agreed position had not been reduced into proper form by incorporation into the Contractor’s Proposal; but no point of agreement remained outstanding in that regard.109. It would be unfair to TTPM to suggest that they made no efforts to address these issues. With one arguable exception, namely Shire’s claim for additional payment, they tried to resolve them. However, the course of events and sequence of communications show that TTPM did not attempt to bring matters to a head but allowed them to drag on through the summer; examples will appear below. Underlying this lack of focus was the perceived comfort of the availability of further letters of intent. And the Trust remained willing to continue issuing letters of intent because it did not receive adequate advice.110. At the outset of the H5 project Mr Bryan was, to be sure, given advice concerning the use of letters of intent, and I accept that he sanctioned the commencement of the H5 works in the understanding that the letter of intent fell short of the full construction contract that was intended to be executed. However, that advice was concerned with the “classic” use of letters of intent, namely to permit the works to commence at a time when the details of the contract had not been worked out. I accept Mr Bryan’s evidence that no advice was given that, the “classic” use having been outlived by the passage of time and the enlargement of the works being done under letters of intent, it was no longer appropriate to continue issuing letters of intent but that instead the proper course was to insist on a contract. In this respect I prefer Mr Bryan’s evidence to that of Mr Talabani, who said that he had specifically advised Mr Bryan not to issue further letters of intent and instead to press for the contract and that Mr Bryan had rejected that advice. First, I found Mr Bryan to be a generally impressive and consistent witness. Second, his evidence on this point coheres better with the other evidence in the case. Third, I should have expected some documentary corroboration of advice such as Mr Talabani claims he gave. Fourth, Mr Talabani’s evidence was inconsistent with the way in which TTPM advanced its case at trial, which was that advice such as he claims to have given would have been inappropriate.111. I also find that no advice was given to the effect that, the longer the H5 works continued under letters of intent, the less was the incentive for Kier to execute the contract. The reason why such advice was not given was that TTPM, and in particular Mr Talabani, believed or assumed that, to the extent that works were done under the letters of intent, they were subject to the provisions of the (as yet unexecuted) contract. To take the specific case of liquidated damages: in 2005 it was a shock to TTPM and to Mr Bryan to learn that the final letter of intent did not entitle the Trust to liquidated damages in the event of delayed completion. I do not, in the circumstances, think that it is open to TTPM to contend that it owed no duty of further advice to Mr Bryan because he understood that the letters of intent were not the same as the contract.112. Mr Hinchliffe expressed the view that it was reasonable for a project manager that was not a lawyer to hold what might be an erroneous view of the meaning and effect of the letters of intent. I disagree. TTPM had put together the contractual documents and the letters of intent. If it was not competent to understand the letters of intent, even with the assistance of its in-house lawyers, it should have advised the Trust of the need to obtain professional legal advice. What it could not do, in my judgment, was proceed on the basis of a particular legal understanding and then say that it was no lawyer and could not be expected to bring a lawyer’s understanding to bear. Although the situation is different from that in the Pozzollanic Lytag case the relevant considerations are similar to those enunciated by Dyson J (see paragraph 76 above).113. In view of the importance of obtaining the contract, I consider that a reasonably competent project manager would have given to the Trust firm advice by the end of March at the latest that letters of intent were no longer appropriate and that instead every effort should be made to execute the contract. Such a conclusion draws support from Mr Binns’ acknowledgment in May 2005 that only three or so letters of intent should have been issued and TTPM should then have “pushed for the contract”, and from Dr Aldridge’s evidence. The conclusion is not based on recognised or established professional practice in the strict sense of that expression; though, if on the contrary such a practice were thought to be exist, it could only be that letters of intent were not used repeatedly throughout a project in place of a contract. Rather, I would say that, having regard to the importance of obtaining a contract and to all other relevant factors, TTPM’s conduct in addressing every difficulty by the expedient of issuing “just one more” letter of intent was clearly below the standard reasonably required of them, having regard in particular to the manner in which it was addressing the matters that prevented execution of a contract. The difficulty with the way in which TTPM dealt with the matter was that the efforts at resolution entirely lacked focus and any sense of necessity. Correspondence, emails and discussions abounded, but they provided little incentive for the resolution of the matter when Mr Talabani continued to see further letters of intent as an acceptable pressure-valve. 114. Mr Fraser submitted that it was not incumbent on TTPM to “play the dangerous game” of an ultimatum to Kier—indeed, that it was incumbent on it not to do so—because of the risk that the contractor would walk off site. The submission draws such attraction as it has from the conjunction of the following matters: (a) the propositions, put to Dr Aldridge in cross-examination, that “the bluff-calling point [i.e. the question whether to call the bluff of a contractor threatening to walk off site unless another letter of intent is issued] comes up at every juncture once a contractor has started to work” and that “precipitating a situation where a contractor might leave site is a dangerous game of brinkmanship”; (b) Mr Bryan’s oral evidence to the effect that he would not have run the risk of Kier leaving site; (c) the tacit assumption either that one is already faced with a threat by the contractor to leave site or that the Trust’s case is that the project manager should have demanded execution of a contract when necessary matters had not been resolved. I reject Mr Fraser’s submission for the following reasons.(1) It tends to prove too much, because it supports the unattractive position that, when faced with a contractor who appears to be in no hurry to execute a contract, the project manager should avoid all risk of confrontation by accepting the certainty of proceeding further under letters of intent, at least unless the builder takes the initiative in respect of finalising the contract.(2) It is contrary to Mr Binns’ candid, and as it seems to me entirely reasonable, acceptance in 2005 that, where letters of intent have been used to start a project, the time will come where the proper course is to refuse to issue further letters of intent and instead to press for a contract.(3) It is not closely related to the facts of this case; they invite a more realistic perspective. First, although Kier twice threatened to withdraw its labour—once when it was asking for a letter of comfort from AIB, and again when the Trust withheld payment in January 2005—on neither occasion did it carry through with its threat. Second, Kier never threatened to leave site because it was not covered by a letter of intent. Third, however, Kier worked on site during several periods when no letter of intent was in force: 19th to 30th January 2004; 27th February to 11th March 2004; 30th April to 9th June 2004; 2nd July to 12th July 2004; 31st August to 14th September 2004; and 26th November 2004 to 31st March 2005. (The last period is contentious, in that the final letter of intent is capable of being treated as valid until completion of the works.) What the facts suggest is that, far from the repeated issue of letters of intent being a necessity, there was plenty of opportunity to address the outstanding issues and move instead to a contract.(4) The point has been advanced—both in cross-examination of Dr Aldridge and in submissions—in a manner that presumes the existence of confrontation. To some extent Dr Aldridge invited this line of attack, for it was he who introduced the language of “calling Kier’s bluff” into the discussion. However, that simply is not the manner in which sensible efforts to finalise the contract would begin. Similarly, although Dr Aldridge when cross-examined agreed with Mr Fraser’s proposition that “the bluff-calling point comes up at every juncture once a contractor has started work”, that again seems to me to overstate the position: the furthest the matter goes is that, once a project has started under a letter of intent, any attempt by a project manager to insist on a contract gives rise to the potential that at some point an impasse will be reached and a bluff might have to be called.(5) It is in my judgment perfectly straightforward to suppose that at an opportune time—whether when a letter of intent is about to expire or, more probably, upon the issue of a letter of intent—the project manager makes it clear that no further letters of intent will be issued but that the contract must be executed. That would clearly be inappropriate if it required execution of the contract when necessary matters had not been resolved. But no one is suggesting that that is what should happen. Rather, the statement that no further letters of intent would be issued would be coupled with formal identification of all outstanding matters and urgent and concentrated efforts, within the constraint of time, to address the matters. To suppose that the alternatives are hostile confrontation or (as happened in this case) supine acquiescence is to lack realism.115. Of course, if an ultimatum is unaccompanied by practical efforts to resolve outstanding difficulties, it will serve no purpose and might give rise to a risk of breakdown in the relations between the employer and the builder. Precisely what steps should have been taken cannot be stipulated; as the saying goes, there is more than one way to kill a cat. But in essence the matter was, in most respects, relatively simple; it appears difficult only if one supposes that Kier was at the material time trying to avoid signing the contract—a supposition that I reject. The first thing to do was to identify the things required to be done, how they were to be done, and within what timescale they were to be done; this is the “action list” of which Mr Fraser was dismissive. Of course, it does not matter in itself how such an action list is presented, and the point is rightly made that the making of a list does not by itself advance matters. The first stage is not for that reason redundant. At trial it was remarkably difficult to identify with certainty what issues were outstanding at particular times. One example is the matter of the resolution of the terms of Kier’s appointment of the architect. Another, of a slightly different nature, arises from the fact that TTPM’s minutes of the monthly meetings records that the only matter outstanding in July and August 2004 was the dispute with Shire, although both Mr Talabani and Mr Kimber gave evidence that they believed there were other matters outstanding. Clear identification of outstanding matters has practical benefits for project management as well as trials, because it makes it easier to assess the implications of points that arise. An example of this is, perhaps, Mr Talabani’s inconsistency from time to time as to whether at the end of August 2004 the Shire dispute was the only thing preventing a contract from being signed (compare his oral evidence with his email of 26th August 2004). More generally, the reason why it is common to make action lists of one sort or another is that a structured and programmed approach to problem-solving enables parties to focus on what has to be done and to do it within clear timescales. The manner in which matters became drawn out over a period of many months, even after the H5 works had been on foot for many months already, shows the need for a structured approach to have been taken in this particular case.116. A deadline and an action list would also require the relevant parties to hold such meetings as were necessary in order to thrash out the problems. This would have involved direct communication at director level, if that had proved necessary. Whether or not this would have worked is a question of causation, not of breach of duty. One way in which TTPM’s case was put—for example, in cross-examination of Mr Bryan, and in Mr Hinchliffe’s evidence: see paragraph 90 (6) above—was that escalation of the levels of communication would be fruitless if Kier had its own unstated reasons for not wanting to sign the contract. There are two answers to that: first, so far as concerns breach of duty the question is what should have been done, not what it would have achieved, and it has not been suggested and could not reasonably be suggested that TTPM’s conduct in respect of the contract proceeded or should have proceeded on any other basis than that both parties were desirous of concluding a contract; second, in respect of the period from February until September 2004, I reject the suggestion that for reasons of its own Kier was not desirous of achieving the execution of the contract. It is of interest that, on the one occasion in 2004 when an ultimatum of sorts did exist—Kier’s threat to leave site unless it were given a letter from AIB—TTPM did take discussions to board level, with notable results (see paragraphs 33 and 35 above).117. The lack of focus and urgency on TTPM’s part can be seen by looking at some of the main issues that arose during the relevant period.118. There were two issues relating to AIB: first, Kier’s request, originally made in December 2003, for a letter from AIB regarding funding; second, AIB’s request for a warranty from Kier. Both of these issues had been resolved by 6th May 2004 and had no subsequent relevance to the delay in executing the contract. However, in my view they were perfectly capable of being resolved significantly earlier if TTPM had coordinated communications. As regards Kier’s request for a letter of comfort, there was no demonstrable reason why this should have been an independent cause of delay, let alone a cause of several months’ delay. It was important to overcome Kier’s threat to leave site unless a letter were produced; TTPM did this efficiently, as already mentioned. Otherwise, the matter was simply one of coordinating communications in such a manner that satisfactory terms of a letter were identified and could be produced in conjunction with the contract. This might well involve some form of dialectic, but that does not turn it into a Catch-22 situation. The fact that TTPM did not owe to the Trust any duties in respect of the arrangement of finance is not in point; it did owe duties in respect of putting the contract in place and was therefore properly concerned to ensure that funding issues did not prevent the finalising of the contractual arrangements. In the event, it proved possible to satisfy both Kier and AIB. As regards AIB’s request for a warranty, Mr Talabani mentioned this in his letter of 22nd March 2004 (paragraph 36 above), which makes it clear that even at that stage, more than four months after the issue of the first letter of intent, he had not ascertained what AIB’s requirements were. The issue had, of course, fallen away within the month. I do not consider that there was any justification for this point to be a cause of delay in the execution of the contract or that the evidence discloses any reason why both issues regarding AIB could not have been identified at an early stage and dealt with by the end of March 2004. 119. Regarding warranties, Mr Hinchliffe accepted that Kier was acting reasonably and in accordance with its own Standing Orders and Procedures in requiring that warranties from the design team be resolved before it signed the contract. That being so, it is striking that Mr Talabani does not appear to have realised until April 2004 that warranty issues could not be “parked” until after the contract had been signed. In my view, this is one respect in which it would materially have assisted the prompt resolution of the contractual issues if TTPM had, from an early stage and in conjunction with Kier, identified clearly what matters needed to be dealt with before there could be a contract.120. In fact, the saga of the warranties indicates something of the lack of urgency in TTPM’s approach. Commencement of the H5 works without a contract and under a letter of intent was at best a necessary evil and it should have been a priority to regularise the position by means of the JCT contract as soon as possible. This meant that it was incumbent on TTPM to identify the issues to be dealt with. The need to address the warranties was, or ought to have been, obvious; it should also have been obvious that this needed to be done promptly, not least because the finalisation of the warranties involved other parties. However, Mr Talabani did not even forward to Kier the required drafts until 22nd April 2004, apparently because he wrongly assumed that they could be dealt with later. In the event, discussions concerning the warranties and terms of the architect’s appointment continued until the early summer, although there is no apparent reason why they should not have been resolved by the end of March at the latest.121. As for the wrangle that went on between Kier and the consultants, principally the architect, concerning the terms of appointment, I make the following observations. First, the fact that this concerned the relations between Kier and the consultants does not mean that it was not a matter that TTPM needed to address; insofar as it affected the execution of the building contract, it was a matter that TTPM were required to deal with in order to ensure that it did not affect the Trust’s interests. Second, issues concerning warranties and consultant appointment are by no means unusual but will commonly arise in construction projects; a point made by Dr Aldridge. Third, there is no evidence that the problem in the present case was unusual or was anything other than entirely tractable; indeed, it was resolved in the summer. Fourth, the terms of Mr Talabani’s email of 16th April 2004 (paragraph 39 above) show that TTPM had failed to keep fully informed of progress on this matter but—in a manner not dissimilar to its handling of the warranties issue—had proceeded on the assumption that all was well. Insofar as this was a matter that affected the building contract, TTPM should have had a sufficiently structured approach to address it promptly and should have been proactive in addressing it rather than leaving it to the builder and the architect.122. As regards the Shire issue, it is likely that this would have remained the last outstanding matter holding up the contract. Whether or not it could be resolved is strictly a matter of causation, rather than of breach of duty; though considerations of what actions would be practically worthwhile are obviously relevant to questions of negligence. The evidence of Mr Talabani, Dr Aldridge and Mr Hinchliffe is all to the effect that, if the Shire claim for additional fees were the sole stumbling block, the sensible advice to the Trust would have been to pay the claim if that was the price of obtaining a contract. The good sense of that view appears from a comparison of the figures: the contractual figure for liquidated damages was £50,000 for each week of delay, whereas the total sum in issue with Shire was less than half that amount. 123. In the light of Mr Talabani’s evidence on this point, the terms of his email of 26th August 2004 is surprising: “The only thing holding up executing the contract docs is Shires appointment. … I suggest we issue a letter of intent for the whole value up to the end of the job. Then Shires can go fuck themselves.” Mr Talabani said in evidence that, despite the terms of the email, the position was never achieved at which resolution of the Shire issue was the sole remaining condition for execution of the contract. I reject that evidence as regards matters of substance, and I make two observations in respect of it. First, Mr Talabani’s point appeared to be that the changes resulting from the VE exercise had not been incorporated formally into the Contractor’s Proposal for inclusion in the contract. The reason for that, however, is not that there was a problem over the VE changes—they had been agreed before March and well before, even on TTPM’s case, Kier began to have cold feet about the contract—but rather that TTPM had taken a very relaxed approach to the formalising of agreed points; it did not record that the VE package was outstanding in any minute of a monthly meeting after June, and it had to be reminded by Kier more than once that it had not produced a revised copy of the contractual terms to incorporate the agreed amendments. It is quite true that Kier had been slow to put the VE changes into the required form; but, as this was a simple task and there was (as I find) no sinister reason for Kier’s tardiness, this is precisely the sort of delay that TTPM ought to have been addressing with urgency. Second, the email of 26th August 2004 speaks for itself: where Shire apparently held the key to the conclusion of the contract, its demands would be circumvented by using letters of intent to completion of the works instead of a contract.124. I find that Mr Talabani’s approach to the Shire issue resulted from his misapprehension that the Trust’s position was protected without a contract. It is possible, also, that he did not focus on the importance of the issue because his too relaxed approach to finalising matters of detail meant that he had not achieved that level of clarity in his own mind which would have enabled him to see that (to adopt an expression used at trial) all of the other ducks were indeed lined up in a row. At all events, once the importance of having a contract was understood, a reasonably competent and careful project manager would in my judgment have advised the Trust that it should pay Shire’s claim if a failure to pay it would prevent the contract being executed. Whether the Trust would have accepted that advice is a different question; though, as will appear below, I consider that it would have accepted the advice, if it had also been advised correctly as to the importance of having a contract.125. I also consider that the isolation of the Shire issue could and should have taken place very much earlier than it did. The demand was made on 24th February 2004. TTPM did not respond until 8th April and took a further five weeks to ask for a breakdown of the claim. That breakdown was received in the first week of June, but TTPM had not progressed the matter by mid August. In my judgment, it ought to have been obvious that the dispute with Shire had the capacity to delay the execution of the contract; therefore TTPM should have addressed it as a matter of urgency. Once it was apparent—as it should have been by the beginning of April 2004—that no other issue was preventing the signing of the building contract, the matter should have been resolved promptly, having regard to the fact that 17th April 2004 marked a full five months since the issue of the first letter of intent.126. In the circumstances, I am prepared to accept that the introduction of the Shire issue in late February 2004 meant that it was within the bounds of reasonableness to advise the issue of a further letter of intent in respect of a short period, although it may be that the better course would have been to refuse any letter of intent after Revision B. TTPM should have advised that further letters of intent thereafter were inappropriate and should have brought urgency and focus to bear on resolution of the outstanding issues, all of which should have been clearly identified beforehand. In my judgment, all of the issues could have been dealt with in the 7½-week period that in fact elapsed before the subsequent letter of intent was issued in mid April; the fact that some of the issues dragged on until later does not mean that they could not have been addressed earlier. Even if that were wrong, there was plenty of time to deal with matters before the end of May and, in any event, well before September. Causation: execution of the contract 127. Issues nos. 5, 6, 7 and 9, as formulated by Counsel, identified the following questions in the event of a finding of breach of duty: 5. If TTPM had given non-negligent advice and/or acted without negligence, what would have been the likely outcome on the balance of probabilities? 6. If the likely outcome was that a contract would have been executed by Kier in the form envisaged by the parties, would the Trust’s negotiating position at mediation and thereafter have been significantly stronger than it was? 7. If so, did the Trust lose the opportunity to obtain the benefit of that stronger position as set out in paragraph 35 of the Amended Particulars of Claim? 8. Even if Kier had executed the building contract would the Trust on the balance of probabilities have pursued a different result at mediation taking into account the matters relied upon by TTPM, namely: (a) The risks of large scale construction disputes involving contractual arguments, extensions of time, loss and expense and variations. (b) The fact that Kier’s costs of the job were in excess of £4,951.365, it had lost money on the job and was determined to fight its corner for a result it considered fair. (c) The costs, and irrecoverable costs involved in resolution of the dispute. (d) Kier’s experience of claims and disputes as a very large contractor well versed in such matters. (e) The value of the works completed. 128. Issues nos. 5 and 6, as drafted, proceed on the basis that, in order to establish a cause of action in negligence and a right to more than merely nominal damages for breach of contract, the Trust must establish on a balance of probabilities that, if TTPM had performed in accordance with its duties, a contract would have been signed. At trial I questioned this, both as a matter of principle and because paragraph 35 of the amended particulars of claim put all matters of causation and loss on the basis of the loss of a chance; it was averred that there was “a substantial chance (amounting to a high probability) that Kier would have signed [the] contract” and “that Kier would have paid compensation to the Trust in respect of its claim for liquidated and ascertained damages”. Mr Fraser maintained the position that considerations of loss of a chance arose only in connection with the outcome of any dispute under the contract; the execution of the contract was a matter of causation that was properly to be considered on the balance of probabilities. However, Mr Bowdery contended that, despite the formulation of Issue no. 5, the question whether or not Kier would have signed the contract was to be considered in terms of the loss of a chance. Neither Mr Bowdery nor Mr Fraser developed his submissions on this point at length, though both helpfully referred me to the discussion in chapter 8 of McGregor on Damages (18th edition, 2009). I turn to consider this question, which is (as it seems to me) of some importance in this case.