HT-2023-000006 - [2024] EWHC 1510 (TCC)

Variations 6 and 21

This was discussed at some length at the trial. This item must not be confused with variation item 21 which relates to the separate instruction to cover the holes/slots in the concrete slabs, that not being part of A&V works. I explained that the service holes/slots holes to the concrete floor slabs were required to be covered as a result of a suspension by BYUK at the beginning of July 2020. This suspension required A&V and all other subcontractors of BYUK and JBH to attend a 2-day tool box talk specific to debris falling through floor service holes (trial bundle 4, page 1678). The creation of the initial holes, materials falling through the holes by others and the covering of the holes was not my responsibility. The talk was undertaken specifically because the works were suspended for 2 days by BYUK not by any of my actions.

Previously Adam Hill / JBH had agreed with me to pay for this item. It is only as a result of JBH actions in March 2021 that they purport to change their mind regarding payment.

Within the Blizzard adjudication the Adjudicator decided that as JBH had accepted this as a variation withing application 12 then this still confirms this as a variation.

JBH’s position

JBH rejects this alleged variation and values it at £nil:

JBH accepts that a suspension of works notification was issued by Bouygues. At 17:23 on 7 July 2020 (after A&V had left site) Bouygues issued a suspension of works notification because the holes through the floor slabs had not been covered up after the installed of the vertical pipes for the risers (“Penetrations not recovered [sic] after services installed.”) [3590] These services were installed by A&V, and it was its failure to cover up the holes. At 11.37am on 8 July 2020, Bouygues issued a further suspension of work notification specific to Tower 3 (A&V’s scope) because of the same unsafe working. Bouygues stated that there was a risk of “Falling objects, dust and debris can cause injury and health problems for operatives working below.” [3588] This was rectified by JBH (on behalf of A&V) by covering the holes, and by delivering tool box talks to operatives working on Towers 1 to 3 (including A&V). The attendees are recorded at [4219, 4220]. The SOWN to Tower 3 was lifted at 14:55 on 9 July 2020. The emails show that the SOWNs only affected Towers 1, 2 and 3; see [4217] and [4221]. In other words, the health and safety issue and resultant suspension concerned A&V’s scope. There was no suspension of Towers 4 and 5 where Watertight was working.

Adam Hill provided the following evidence in his first witness statement in the Final Account Adjudication [1700-1701]:

Given A&V caused the suspension, it is not entitled to any additional payment.

In any event, A&V has failed to comply with the condition precedents in clause 8.9 and 8.10 to any payment related to this stop work notices.:

As to quantum:

A&V never contested that there should be a cover over the open holes between the slabs for Health and Safety purporse, [sic] but the way JBH instructed A&V to undertake this was a variation. JBH agreed to provide A&V with plywood and carpenters tools (inappropriate for a plumbing firm). However, as a good gesture A&V did accept to do this work as per JBH instruction, unfortunately [sic], JBH failed to supply A&V with the mentioned items and A&V was physically forced to undertake this work [AP3/ page 354 - 362] A&V undertook the new process works including revisits as instructed by Andrew Macey. Hopkins failed to supply the plywood and multitool and A&V was forced to look on site after any small pieces of wood in order to cover those open holes between the slabs and utilising their own tools not JBH multitool as promised. A&V had no allownce [sic] for such work, as this Penetration Cover works was not included within the Scope of Works of the Sub-Contract. A&V consider that this variation should be honoured and paid in full in the sum of £8,000.00.

J&BH do not deny this works was undertaken. However, Hopkins’s commentary in the adjudication confuses the forming of holes through non-structural elements with that of providing additional temporary protection between concrete floors to be H&S compliant as requested by J&BH prior to completion of other works by other trades and the fire stopping company to the riser cupboards. The forming of holes through non-structural walls etc has been extensively undertaken by A&V throughout the works in partitions, ceilings and the like and that was included. The timber covers and hole forming is purely a Health and Safety requirement requested by J&BH for A&V to undertake. The floor aperture where this was to be undertaken was a concrete structural floor and A&V consider that this variation should be honoured and paid in full as this works was not part of their Sub-Contract scope of work.

This item relates to the penetration covers between floors. During my cross examination with Mr Frampton I re-confirmed that JBH had instructed me to undertake this work. I also noted the difficulty with the process. I agreed that I had initially agreed to undertake the early works as a good will gesture but as JBH became more aggressive in March 2021 then I withdrew the offer. We had to install these to all floors and not much reuse of boards was possible between floors.

JBH’s position

JBH rejects this alleged variation and values it as nil:

Variation 14: Kitchen copper pipework extension in T1, T2 and T3 on every floor

Variation 16: P1 L1 North Corridor High level install: 2 operatives @ £250/D: revisit

A&V had installed the Corridor high level pipework without having the side wall installed (as per JBH 2 weeks look ahead email 6 Nov 2020) [AP3/ page 118] Then the dry liners could not install the corridor side walls because of the A&V's installed pipework. So JBH instructed A&V to remove the pipework and to come back as a revisit to re-install the high level pipework once the walls were ready. A&V was first instructed to commence the works on Podium 1 Level 1 [which was H/L (high level) corridor] on 6 Nov 2020 [AP3/ page 118] A&V installed the high level pipework at that time as instructed, but then A&V had to go back and remove the pipeworks as this was clashing with dry liners and re-install the work again on 12 February 2021 as instructed by Paul James email [AP3/ page 130]. A&V consider that this variation should be honoured and paid in full in the sum of £2,500.00.

It is accepted that no formal instruction was issued but it is apparent from the commentaries from JBH detailed in the Scott schedule evidence that the works were requested to be undertaken. Within my cross examination from Mr Frampton, I recall advising of numerous revisits to the podiums to undertake alteration works and this was one of those.

During my cross examination by Mr Frampton, I confirmed that we had asked JBH managers to sign time sheets, but they refused. My claims were therefore based on the simple actual labour time spent on this item.

Variation 17: P1 L1 Main Riser Boosted meter set changed 1 Operative for 2 days @ £250/D

A&V had installed the booster pipework set within the Riser as per the drawings received at the tender stage. Then after installation JBH changed the design and asked A&V to change the install as per new (hand) drawing. Paul James (JBH) issued the new (hand) drawing via the Whattsapp [sic] Group on the 16 February 2021 [AP3/ page 352]. A&V had to remove the set from the inside of the Riser and re-install the set outside the Riser as per the Paul James (JBH) hand drawing. A&V consider that this variation should be honoured and paid in full in the sum of £500.00.

JBH’s position

JBH accepts rejects this item as a variation and values it at nil:

Variation 18: Repositioning of Heating IV; 1 Operative for 8 days @ £250/D (which is half of the actual 16 days as agreed with Mr Macey

Variation 19: Kitchen SVP-HDPE stack (batweld) extension and install extra 6 PRV on Domestic services in all 3 Towers (28 floors in total) A&V charged this work @ £258.07 per floor

Similar as variation 14 A&V could not install the HDPE pipework in full lengths at the first time of installation as no walls were fully erected [AP3/ page 348] so A&V had to install the main vertical HDPE pipe and come back as a revisit to extend the low level horizontal HDPE pipework once the walls were ready. JBH have previously been provided with the details for this variation. JBH accept this item as a variation [despite not doing so previously] and value this as 34% only as part of the Final Account Adjudication [AP3/ page 227] A&V consider that this variation should be honoured and paid in full as it was accepted.

JBH’s position

JBH accepts this Variation 19 is a variation but disputes the valuation:

JBH accept this as a variation but not for the sums claimed. During my cross examination by Mr Frampton, I corrected him on the amount of work required to undertake this. There were 4 sinks per floor in various locations. The time claimed was for finding materials, collecting materials making the pipes to the correct bends and then installing including that of the valves. Each of these were individual and over all towers floors and not just in one location. I did not recognise the application of Spons to value this work as this assumes continuous work in one location and/or a larger run of work, it was based on actual labour of 1 man per day per floor whom I saw undertaking the works during my site visits.

I repeated that we had asked JBH managers to sign time sheets, but they refused. My claims were therefore based on the simple labour time spent on this item.

Variation 22: Prefabrication of SVP for P2 L1. A&V charged for 1 Operative – 10 days of work @ £250/D.

There were approximately 100 of these Prefab SVP to undertake but at the time of JBH breaches A&V engineer had only undertaken 10-man days directly related to this instruction [AP3/ page 363] [£250 x 10 days = £2,500.00] JBH accept this item as a variation [despite not doing so previously] and value this as 30% as part of the Final Account Adjudication [AP3/ page 227] A&V consider that this variation should be honoured and paid in full as it was accepted.

JBH accepts that this item was a variation but challenges quantum:

JBH accept this as a variation but not for the sums claimed. During my cross examination by Mr Frampton, I advised that there had to be no joints, so these had to be made up on benches. These were not installed as Mr Frampton had assumed but just a variation to prefabricate some svp pipework. As there were numerous hold ups on the to the podiums and as we were waiting for instructions this work was good to keep an operative engaged. This was an actual instruction from JBH, and the works started on the 5^th March 2021and I saw this undertaken.

I repeated that we had asked JBH managers to sign time sheets, but they refused. My claims were therefore based on the simple labour time spent on this item.

Variations: Conclusion