HT-2022-000092 - [2024] EWHC 3184 (TCC)

Miscellaneous (Issues 7, 8, and 18)

Issue 7, so far as relevant in view of the above, raises the matter of Contributory Negligence. The only matter in that connection which was pursued in the evidence at trial was an alleged failure to coordinate the activities of the subsequent ground investigation and Phase 2 works undertaken by GWL in 2017 and 2018 with the geophysical magnetometer survey by TVAS in July 2019. TVAS are a company which carries out surveys for archaeological purposes.

What is said is that the geophysical magnetometer survey identified both geological and general magnetic anomalies over significant parts of the site, and reported the same in the form of an interpretation plot. In view of these anomalies, it is suggested that Darcliffe should plainly have provided the results of the survey to GWL in the first instance, and to Glanville for information.

This seems to be wholly unrealistic. I accept the evidence of Mr Ben Longworth, on behalf of Darcliffe, to the effect that this survey was to ensure that there were no difficulties, from an archaeological point of view, in developing the Site. The TVAS survey gave Darcliffe a clean bill of health in this regard, as he had hoped they would, and Darcliffe were therefore free to pursue the development. To suggest that, at this late stage, Darcliffe should have understood the TVAS survey to undermine what they had been told by Glanville and GWL strikes me as completely unreal. Glanville and GWL were, collectively, the ground investigation experts and they had raised no concerns.

Issue 8 would require the Court to determine whether any of Darcliffe’s claims against Glanville are time-barred by reason of s.2 or s.5 of the Limitation Act 1980. Glanville’s position on limitation is set out in paragraph 59 of its Defence.

However, this limitation defence arises only in respect of Darcliffe’s alternative claim for additional planning costs. It does not arise to the extent that they are able to pursue their primary claim against Glanville for additional construction costs. Further, this limitation defence arises only in respect of any claim made in respect of the First Glanville Report in 2014. It does not apply to any claim made in respect of the Second Glanville Report in 2016.

In view of the findings made above, this issue falls away.

So far as issue 18 is concerned, I have already indicated, above, that GWL did, as a matter of fact, rely upon the Glanville Reports. As a matter of law, they were not entitled to do so, since the Glanville Reports contained the following disclaimer:

“This report contains confidential information intended solely for the recipient. This report has been prepared in accordance with the commissioning brief and is for the client’s exclusive use unless otherwise agreed in writing. Glanville Consultants Ltd does not accept liability for any use of this report, other than for the purposes for which it is was originally prepared and provided. Third parties should not use or rely on the contents of this report without written permission from Glanville Consultants Ltd.”