HT-2022-000180 - [2024] EWHC 1088 (TCC)

This heading has been used as a short-hand for an argument deployed by Sweett to the effect that the argument in respect of design deficiencies was the same case as deployed by LOR against MAAP, but that was to confuse the different obligations of Sweett and MAAP respectively. The respective arguments of Sweett and LOR in response need to be considered.

As noted above, Sweett submits that LOR has failed in the pleadings to recognise and reflect that the obligations of MAAP and Sweett were not the same. Sweett submits that its obligation was to review the design produced by LOR to verify its compliance with the design described in Schedules 8 and 10. As is common ground, Sweett was not required to express approval of or consent that the design was suitable or fit for purpose (as opposed to verifying that the design was compliant with Schedules 8 and 10 of the Project Agreement, which it was required to do).

The submission of Sweet is that it was not acting as a backup designer. It was simply comparing two sets of designs to see if it complied with the design in Schedule 8. If the design was not suitable or fit for purpose, provided it was the same design as described in Schedule 8, Sweett would not be in breach of contract. It therefore did not suffice to repeat or tweak the pleading against MAAP because a non-compliance could be a breach of the MAAP contract without being a breach of the Sweett contract. Sweett submits that this has been repeatedly overlooked by LOR.

LOR submits that the Sweett contract required Sweet to ensure that the design of the works complied with the requirements of Schedule 8. That did not involve simply making a comparison between two sets of designs, namely MAAP’s designs and the designs described in Schedules 8 and 10. The proper interpretation of the duty in Clause 3.1 is to consider whether the design complies with the relevant codes that are referenced and incorporated into Schedule 8. For example, in respect of a fire drawing, one of the requirements is to see whether it complies with HTM 05-02. The Particulars of Claim specify the respects in which there has been non-compliance with the requirements in HTM 05-02. It is recognised by LOR that in addition to proving the non-compliance, it must also prove that it was negligent of Sweett to fail to spot the non-compliance when it was reviewing the design.

As noted above, the Court did not find appealing the analogy of poacher and gamekeeper. The real objection is not that the analogy is imperfect, but it is the objection of Sweett that the obligations are not co-extensive. In my judgment, the pleadings in their current form are responsive to this point.

The criticism of Sweett is that the pleadings are defective due to the Pantelli Argument. That argument is set out in the first witness statement of Ms Robbins to the effect that the particulars of Sweett’s contractual obligation are simply a repetition of the design defects for which MAAP was responsible. Sweett submits that it is not explained with which part or parts of Schedules 8 or 10 of the Project Agreement the design deficiencies do not comply. It is also said that the Particulars of Claim do not explain what it is that Sweett did, or failed to do, which meant that its review of the design was inadequate. The criticism of Sweett is that LOR’s approach is the same as that which was rejected by the Court in Pantelli.

In Pantelli, there were professional negligence allegations prepared without any input from an independent expert. The particulars of negligence were no more than statements of contractual obligations, prefaced with the words “failed to”: see para. 9 of the judgment in Pantelli. Further, beyond those bare and generalised allegations, there were no further particulars nor were there any supporting factual matrix for the allegations. It is correct that para. 113.1 of the draft Amended Particulars of Clam contains particulars of negligence comprising the contractual obligations and the words “failed to”. However, this has to be read in the context of the many pages of the pleading which preceded, namely paras. 92-113. They include the following:

The submission of LOR at para 68 of its skeleton argument dated 18 March 2024 is as follows:

“When the totality of this part of the pleading is read, from paragraph 92 to paragraph 113,  what is contained therein is (i) a proper statement of the design requirements applicable  under the Project Agreement; (ii) details of what the design errors were; (iii) details of why  they were non-compliant with Schedule 8; (iv) a statement that the works were built in  accordance with those drawings and (v) then, finally, at paragraphs 112 and 113,1 the  allegation that Sweett was negligent in failing to identify (and notify) the non-compliances  in the designs”.

In my judgment, this case is radically different from the inadequacies of the pleadings in the Pantelli case. The Court accept the submissions that the pleading has to be seen as a whole. It is not the function of the Court to examine whether, at an earlier stage, the pleading was inadequate for the purpose of the current decision of the strike out. In particular, the case is pleaded properly about the non-compliance with specific parts of Appendix 8 and the allegations of negligence. As the case stands, the breach of contract specific to Sweett is pleaded in a comprehensible manner.