Case No. 0LS79020

76. It is unnecessary for the purposes of this judgment, and it may be impossible in any event, to define with precision the expression “project manager”. In general terms, a project manager will act as the representative of the employer for the purpose of co-ordinating the different aspects of a construction or engineering project. In the Royal Brompton Hospital case, at paragraph 23, the judge accepted that project management was “an emergent professional discipline”, the requirements of which would depend to a large extent on the terms of engagement in each particular case, but said that “a central part of the role of the project manager [was] as co-ordinator and guardian of the client’s interests”. One case that concerned the project manager’s role as guardian of his client’s interests was Pozzollanic Lytag Ltd v Bryan Hobson Associates [1998] EWHC 285 (TCC), [2000] B.L.R. 233, where the question arose whether the engineer appointed as project manager had a duty to ensure that all insurances required of the contractor by the contract documents were in place. Dyson J held that the project manager in that case did have such a duty; he had regard primarily to the terms of the engagement but also to the range of the services that would generally be understood by the construction industry as falling within the scope of “project management” in the absence of some qualification in the terms of engagement. In response to the engineer’s contention that it lacked the expertise to assess the adequacy of the insurance, Dyson J said at paragraph 32: “If a project manager does not have the expertise to advise his client as to the adequacy of the insurance arrangements proposed by the contractor, he has a choice. He may obtain expert advice from an insurance broker or lawyer. Questions may arise as to who has to pay for this. Alternatively, he may inform the client that expert advice is required, and seek to persuade the client to obtain it. What he cannot do is simply act as a ‘post-box’ and send the evidence of the proposed arrangements to the client without comment.”77. In the present case, there is no dispute of substance between the parties as to the activities encompassed by TTPM’s contract with the Trust in respect of the H5 works. TTPM was engaged to perform the full range of duties of a project manager, and these included facilitating, assisting and being involved in the procurement of the building contractor and the building contract. In this regard, there is some difference of terminology between the memorandum of agreement executed by the parties in respect of the H2 works and the Terms of Appointment that accompanied TTPM’s fee proposal for the H5 works. The memorandum of agreement provided that TTPM would “oversee the formal award of contracts, to include insurance validation, signatures, warranties etc.” The Terms of Appointment provided that TTPM would “participate in contractor selection and appointment”. It has not been suggested that there is a relevant distinction, for the purposes of the resolution of the present dispute, between those two forms of words, and I think that there is none. (The distinction between the two sets of terms is relevant to an issue concerning limitation of liability and I shall mention it again in that context.)78. The Trust did not contend that TTPM was wrong to advise that the H5 works be commenced under a letter of intent; it was accepted that, in view of the perceived importance of achieving early completion and, specifically, early commencement of the works, it was acceptable to advise commencing them under a letter of intent rather than waiting until a formal building contract could be executed. The case advanced by the Trust against TTPM in respect of breach of contract and breach of the duty of care owed by TTPM at common law is set out in paragraph 34 of the amended particulars of claim and in response 10 of the Trust’s Part 18 further information, which taken together identify a number of things that TTPM ought to have done but did not do in the period from the end of February 2004 to mid September 2004:(1) Advised the Trust of the limited protection afforded to it by letters of intent as compared with an executed contract, in particular with regard to the availability of liquidated damages and the possibility of holding Kier liable for design defects, and of the increasing risk that the repeated issue of letters of intent would make it less likely that Kier would execute the contract.(2) Taken, or advised the Trust to take, resolute action to procure Kier’s execution of the contract by, in particular: (a) taking positive action to remove specific obstacles, such as the dispute with Shire over additional fees (which should have been dealt with by a negotiated settlement and not by the issue of a letter of intent to cover all outstanding work); (b) identifying, by list if need be, all outstanding matters such as VE changes and warranties and maintaining constant pressure on Kier to address them; (c) bringing commercial pressure to bear on Kier at a senior level; (d) threatening to withhold payment until Kier had dealt with the outstanding matters; (e) threatening not to issue further letters of intent.