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

Fecha: 08-May-2024

XIII The four points referred to at para. 22 above

XIII The four points referred to at para. 22 above

98.

The judgment will now deal with the four objections mentioned at para. 22 above.

(i)

Initial design review v design monitoring

99.

The criticism is a failure to specify whether the alleged failings in design review occurred during the “initial full review” of the design or during the subsequent “monitoring of the development of the design”. The amendments to the RFI response state that Sweett did not undertake a distinct initial review, but reviewed drawings on a rolling basis: see the amended RFI Response at para.9. Accordingly, it is not possible to say whether the design review failure occurred during the “initial full review” or afterwards.

100.

There are also criticisms of form that the RFI response ought to appear in the Amended Particulars of Claim. That might have been preferable if the pleadings were being constructed from scratch, but it is not a basis for a strike out application or to justify recasting the pleadings. It is also said that there is a contradiction between the Reply and this allegation. If this were the case, it can be picked up in the Amended Reply which will follow the Amended Defence, and it would be unnecessary for that to be undertaken at this stage. In any event, LOR says that this is a misinterpretation of the Reply: see para. 76 (a) of LOR’s skeleton. It is unnecessary to drill down into this point because it can be clarified in any future Amended Reply.

(ii)

Failure to plead a cause of action specifically in relation to the allegation of failure to monitor the development of the design at paragraphs 112.2(b), 119.2(b) and 166.2(b)

101.

It may have been that this criticism pre-dated amendments to the Particulars of Claim, where these matters have been addressed especially at paragraphs 113.2(b), 120.2 and 167.2. Whether or not it is the case that the criticism was overtaken, there is enough that now appears in this regard in the draft Amended Particulars of Claim, and it is not necessary in order to plead the cause of action or to avoid a strike out of the pleading to have to add further to the draft Amended Particulars of Claim.

(iii)

Allegations as to vanity units

102.

This has been addressed above in this judgment in the rejection for the purpose of strike out of the case in respect of the vanity units.

(iv)

The remaining reference to “good practice” at paragraph 105.8(c)

103.

This ought to be reviewed at the time of dealing with the consequentials for good order. It may be a legacy of what was amended to Good Industry Practice, which was a term within Schedule 8 of the Project Agreement. In the context of all of the amendments of a similar kind, it is not an important matter in respect of the understanding of the case against Sweett.