Case No. 0LS79020

83. Both in cross-examination and in submissions, Dr Aldridge’s standing and conduct as an expert witness were subjected to attack by Mr Fraser, who submitted that he “[did] not have sufficient (or indeed any) expertise to provide an admissible expert opinion to the Court on what a reasonably competent project manager would and would not do in any particular situation” and that the manner in which Dr Aldridge had approached his duties as an expert meant that “the Court [should] discount Dr Aldridge’s evidence in its entirety”. Mr Fraser referred to the principle that, save in exceptional cases, allegations of professional negligence cannot be sustained unless they are supported by evidence from a “relevant professional with the necessary expertise”; see the judgment of Coulson J in Pantelli Associates Ltd v Corporate City Developments No. 2 Ltd [2010] EWHC 3189 (TCC), at paragraph [16].84. First, Dr Aldridge’s relevant experience in the specific field of project management was called into question. After completing his studies, Dr Aldridge spent a little over two years until about 1999 working in project management roles for O’Brien Kreitzberg; then until about 2003 he carried out a variety of roles, including project management and project advice, for Precept; in his remaining two years at Precept he worked mainly as an expert witness, although the projects with which he was involved continued to throw up project management issues; since then, his focus has been on programming rather than active project management. His evidence was that he had worked on only one project where a letter of intent was used; in the remainder of his projects, there had been a contract in place throughout. He had never been in a position of advising, or having to consider advising, his client to “call the contractor’s bluff”, that is, by insisting on an executed contract in the face of a contractor’s threat to leave site unless a further letter of intent were issued. He said that he had been involved in examining information in connection with “hundreds and hundreds” of projects and in not one of them had the project continued to its end under a letter of intent. He had, some years ago, read of one other case in which a letter of intent had been used throughout the project; that project had gone “badly wrong” (though he did not say in what respect).85. Second, Mr Fraser criticised the manner in which Dr Aldridge had gone about his tasks as an expert witness in the case. There were two grounds of criticism: (1) that Dr Aldridge had failed for several months to pay close attention to documentation from Kier that had been supplied to him, with the result that there was a late amendment of the particulars of claim and an adjournment of the original trial date; (2) that, although the timetable for the trial had provided for the experts to give evidence after the witnesses of fact, Dr Aldridge had not read the transcript of Mr Bryan’s evidence before he began his own evidence. It was said that these two matters demonstrated a “complete lack of compliance by Dr Aldridge with his duty to the Court”; in particular, his failure to acquaint himself with Mr Bryan’s evidence was a breach of his duty “to consider material facts which could detract from his concluded opinion”: The Ikarian Reefer [1993] 2 Lloyd’s Rep 68, 81-82. In this connection, Mr Fraser referred to criticism of Dr Aldridge made by Akenhead J in a judgment in 2011. Further, after the conclusion of the hearing he brought to my attention another judgment, that in Walter Lilly & Co Ltd v Mackay and another [2012] EWHC 1773 (TCC), in which Akenhead J was critical of the evidence given by Dr Aldridge.86. I do not consider either that Dr Aldridge lacks the expertise necessary to give opinion evidence in respect of project management in this case or that the manner in which he has approached his task means that I should attach less weight to his opinions, far less that I should entirely disregard them. 87. In my judgment Dr Aldridge was properly competent to give expert evidence in respect of the steps that ought to have been taken by a project manager. He has considerable experience of project management, albeit that his direct involvement as a project manager was at an early stage of his career. Subsequent work as an expert and engaged with programming issues has involved continued engagement with project management issues. I accept Mr Bowdery’s submission that, although programming and management are distinct, they are not wholly separable and an unbridgeable dichotomy between them is artificial. Indeed, both experts in this case have given opinions on programming and on management issues. Dr Aldrige’s limited experience of letters of intent on projects that he himself has managed may be relevant to the weight to be given to his opinion when placed against that of Mr Hinchliffe but does not mean that he is a competent expert. It may, indeed, be an ideal of project management to have the minimum possible recourse to letters of intent. The fact that Dr Aldridge has not been in the position of having to “call a contractor’s bluff” is similarly not indicative that he lacks relevant expertise, and in the light of the comments made later in this judgment it will be seen that I do not think that Dr Aldridge’s lack of this particular experience is of any relevance at all. I also accept the point made by Mr Bowdery for the Trust, namely that it is relevant, though in no way determinative, that Mr Hinchliffe exchanged reports and held discussions with Dr Aldridge as his counterpart and prepared a joint statement with him and did not at any stage raise the objection that he was not dealing with a competent expert.88. As regards Dr Aldridge’s conduct in these proceedings, I make the following short points. First, none of the criticisms affect my judgment as to Dr Aldridge’s candour and good faith as a witness. Second, my present concern is with the substantive merit of Dr Aldridge’s expert opinions; I would discount them only because I considered them flawed, not as a form of sanction. Third, for these reasons I gain no assistance for present purposes in considering what has been said about Dr Aldridge’s manner of producing evidence, or what criticisms have been made of the substance of his evidence, by a different judge in a different case. Fourth, the delay in considering the Kier documents may well have led to unfortunate procedural consequences but is not, in my judgment, relevant to the substantive merits of Dr Aldridge’s opinions in respect either of those documents or, more particularly, of the different issues pertaining to breach of duty. Fifth, although it would have been preferable for Dr Aldridge to read the transcript of Mr Bryan’s oral evidence, and he may be criticised for not having made time to do so, I do not find the point to be of great assistance when it comes to assessing the expert evidence. The truth is that any relevant point said to arise out of Mr Bryan’s evidence could have been put quickly and efficiently from the available transcripts. Indeed, Mr Fraser did put the passages he relied on and Dr Aldridge dealt with them.89. Dr Aldridge’s opinion on issues of breach of duty was to the following effect.(1) The risks to the Trust increased with the issue of each new letter of intent, because (a) the risk of delayed completion grew as the extent of the works was enlarged and the payment covered by the letters of intent increased, and no provision was made for compensation in the event of delay, and (b) there was not the detailed provision regarding the scope and quality of the works and the respective responsibilities of the parties. TTPM failed to advise the Trust of these risks and apparently failed to appreciate them, because it was quite happy to continue discussing the issue of further letters of intent with Kier and then advising the Trust accordingly: Mr Talabani’s email to Kier on 4th December 2003 and his advice to Mr Talabani on 15th December 2003 illustrate the point.(2) It was “very unusual” to permit the issue of more than two letters of intent and almost unheard of to complete a project under letters of intent. TTPM should not have agreed to issue any further letters of intent after, at the latest, the third letter of intent, Revision B, which expired on 27th February 2004. Thereafter the proper course was to “work hell for leather to get a contract signed” and to advise the client not to issue further letters of intent. If at that stage the contractor threatened to walk off site unless a further letter of intent were issued, the client should be advised to “call [the contractor’s] bluff” (an expression used by Dr Aldridge when cross-examined). It was true that, if a building contractor left site during the currency of a job, attempts to find a new contractor would be time-consuming and expensive and would be likely to extend the duration of the works. However, this did not justify exposing the client to the risks of proceeding without a contract. Further, it was a false alternative to suppose that the contractor, faced with a refusal of further letters of intent, would either sign the contract or leave site—the other possibility was that, during a very short period of exposure, the contractors would address the outstanding issues in respect of the contract documents. In this regard he observed that there were periods on the H5 works when Kier was working without a letter of intent. Dr Aldridge was not inclined to place great weight on Mr Bryan’s oral evidence, to the effect that he would not have taken the risk of Kier leaving site: first, Mr Bryan had been under the impression that, as further letters of intent were issued and the works proceeded, the provisions of the contract were extending to more and more of the project; second, the proper advice to Mr Bryan would have been that there was little likelihood of Kier leaving the site.(3) By the expiry of the third letter of intent at the end of February 2004 the contract price had been agreed and the issues regarding the VE exercise had been resolved, and none of the remaining matters ought to have been incapable of prompt resolution, at least for the purposes of enabling the contract to be executed. However, TTPM wrongly continued to proceed on the basis that it was acceptable to issue further letters of intent and, indeed, preferable to do so than to execute a contract that contained provisional items. The communications from Mr Talabani at the time of the issue of Revision D and immediately prior to the issue of Revision E (see his email to Kier on 16th April 2004) show that, although he was saying that a contract ought now to be executed, he was willing to continue to procure the issue of further letters of intent rather than to insist that outstanding matters be resolved. (4) When it appeared that only the warranties remained outstanding (see the communications on 6th and 7th May 2004), Mr Talabani still failed to force the issue. Although TTPM clearly wished to procure a contract, it neither proposed any practical measure by which to achieve that result nor advised the Trust that the continued lack of a contract was exposing it to risk; instead it agreed to propose the issue of a further letter of intent, Revision F. This conduct was the more unjustified because TTPM correctly considered that there were no matters that ought at this stage to have led to further delay in executing the contract.(5) By June 2004 the only significant matter delaying the contract was the dispute with Shire. The proper advice to give to TTPM was that the value of a signed contract far outweighed a few thousand pounds of consultant fees. Either a negotiated settlement should have been arrived at with Shire, or an agreement should have been made to indemnify Kier in respect of Shire’s fees.(6) When on 5th July 2004 Kier asked for yet another letter of intent, TTPM made no effort at all to procure a contract but advised the Trust to issue Revision G. The issue of the final letter of intent, Revision H, was not the result of any reasoned analysis by TTPM, nor even a response to Kier’s demands, but was instigated by TTPM as a method of thwarting Shire’s claim for additional fees. Thereafter TTPM made no serious effort to procure the execution of the contract. (7) TTPM’s lack of urgency appears to be explained by its mistaken belief that the letters of intent were sufficient to enable the Trust to rely on the terms of the proposed JCT contract and, in particular, to claim liquidated damages in the event of delay. The Trust continued to issue letters of intent both because it was encouraged to do so by TTPM and because TTPM failed to advise it of the limited protection provided by letters of intent in the absence of a contract. If TTPM did not understand the risks of the continued use of letters of intent, it should have sought internal advice from its Contract Services Department; if it still felt unable to advise the Trust on the risks of continuing to use letters of intent, it should have explained the fact to the Trust, so that it could consider taking legal advice. “The simple reality appears to be that TTPM did not understand the risks associated with continually proceeding under an increasing LOI. As a result, it not only failed to reasonably manage the process to ensure the contract was implemented … but it failed to generally ‘provide the services as expected of a firm of project management, cost management and planning supervisor consultants in a proper professional manner … with all reasonable skill and care’” (report of 1st April 2011, para 7.4.6).(8) Regarding particular issues arising from the claim:(a) Although merely to make an action list would be unlikely to achieve very much, there was some value in “tabulating the information and making sure that the parties kept them (sic) on their mind properly”. The important point was that “[TTPM] should have been holding meetings to resolve those action lists and should have got the parties together to resolve them as well.”(b) Although resolution of the issues between Kier and, respectively, Associated Architects and AIB would have required negotiation and agreement between those parties, “All of these things are not difficult to resolve in and of themselves. They require work to be resolved but, as considered at the time by Mr Talabani and various different others in the documents, none of them were considered to be irresolvable within short periods of time. The fact that they weren’t [resolved] seems to me to be because there was no real pressure to resolve them, no need to resolve them quickly. And, of course, Kier, as a canny contractor, will seek to improve its position and get the best deal it possibly can while it has no pressure to sign the contract.”(c) TTPM failed to advise the Trust of the risks it faced if the dispute over Shire’s claim for additional fees remained an impediment to execution of the contract with Kier. If necessary, the Trust should have been advised to pay Shire’s claim in order to remove that impediment.