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

As regards the roofs, Sweett says that the criticisms are of the specifications which formed part of Schedule 8. They were internally contradictory, referring to a warm roof, but actually providing details for a cold roof. There are other related criticisms: in each case, Sweett submits that Sweett could not be held liable for design defects within Schedule 8. These may have been faults in Schedule 8, but there was no duty of Sweett to challenge the design specifications of Schedule 8. If it is the case that there is a response to this answer, then Sweett says that it should be pleaded in the Amended Particulars of Claim and not in a Reply.

In oral submissions at Day 1/134/3 to Day 1/139/2, Mr Hanna on behalf of LOR provided a detailed answer to the criticism of Ms Garrett KC for Sweett. In short, it amounts to saying that there was a non-compliance with Schedule 8. In particular, there was a specification J42 within Schedule 8, most of which pointed to a warm deck roof (albeit that there was some tension in the document between a warm and a cold deck).

MAAP produced drawings which were for a cold deck roof. The argument of LOR is that that was inappropriate in that its drawings did not provide for ventilation with consequent interstitial condensation. LOR’s case at para. 163.1 of the Amended Particulars of Claim is that MAAP was wrong to select a cold deck roof in that this was contrary to Good Industry Practice and relevant BS standards there specified, and reasons are given. In this regard, it did not comply with Schedule 8 and was therefore a breach of contract on the part of not only MAAP (see para. 163.1 and also see paras. 149-152), but also of Sweett.

It was also a breach of contract on the part of Sweett in that the drawings of MAAP issued in May 2008 did not comply with Schedule 8: see the RFI Response at para. 89 in Response to Request 89. The case of LOR is that “Sweett ought to have identified the non-compliances set out at paragraph 163.1 of the Amended Particulars of Claim. That is so regardless of whether Sweet’s review of those drawings formed part of its initial full design review or ongoing design development monitoring within the meaning of paragraph 3.1 of Appendix 1 of the Independent Tester Appointment.” It is also said that the design drawings of MAAP for the roofs did not provide adequate air space above the insulation and there was a lack of adequate cross-ventilation contrary to Good Industry Practice and various codes. This was another instance of non-compliance which rendered Sweett in breach of contract in failing to ensure compliance with Schedule 8.

The case will depend on expert evidence about the breaches of Good Industry Practice and the various codes such as to give rise to non-compliance and whether Sweett acted without reasonable care in failing to observe the non-compliance. It is complicated by the tension in the J42 specification between hot air and cold air, and the consequences which that might have. All of this is for trial, and there is no strike out point here. In short, there is a case with a real prospect of success about non-compliance which ought to have been observed by Sweett. That is not to say that it will succeed, but that the threshold of raising a case at this stage has been satisfied.