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THE ALLEGED BREACHES OF DUTY
THE ALLEGED BREACHES OF DUTY
The alleged breaches of duty are helpfully summarised in the Agreed List of Issues.
“Did the Defendant fail to use reasonable skill and care in the performance of its services pursuant to its appointment in the ways alleged at paragraph 31 of the RAPOC, ('the alleged breaches')?
a. In failing to produce a moisture content control plan (MCCP) or risk assessment?
b. In failing to identify that Hess's tender contained no adequate moisture protection during construction?
c. In failing to take appropriate steps in response to the CLT being exposed to sustained rainfall around Christmas 2016?
d. Did the Defendant wrongly believe that the CLT would dry out sufficiently from its internal face?”
The pleaded particulars of breach provided further detail of the alleged breaches of duty and state:
“In breach of contract, the Defendant failed to take reasonable skill and care in the performance of its services in that it:
PARTICULARS OF BREACH
1 Failed to produce a moisture content control plan and/or risk assessment. This was part of the information required for the construction and completion of the Development and therefore required by paragraph 8 or the list of Services appended to the Appointment. lt was also necessary to properly co-ordinate the work as required by paragraph 7.2 of the list of Services and to properly advise on the need for particular works as required by 18.1 of the list of Services. Had the Defendant prepared a proper moisture content control plan and/or risk assessment with reasonable skill and care, then it would and/or should have concluded that the only reliable and effective way to protect the large expanse or flat roof CLT panels during the construction phase was to erect a temporary shelter over the works area until the insulation and roof finish were installed and the roof rendered weatherproof. It would then have included such a requirement within its performance specification and/or preliminaries for a project of this size.
31.1.A Failed to identify when appraising and reporting upon Hess' tender and those of the other contractors, that they contained no, or adequate moisture protection during construction. This was required by the Defendant's own performance specification dated 16 March 2016. The Defendant should have been aware that the erection or a temporary shelter over the works area was the only reliable and effective way of protecting the works during construction (from the moisture content control plan and/or risk assessment referred to in Paragraph 31. 1 above) and should have advised the Claimant that a temporary shelter needed to be provided by one of the works contractors. Further, in the absence of an earlier moisture content control plan/risk assessment the need to properly appraise Hess' tender and those of other contractors should have been a further trigger to produce one.
Failed to take any appropriate steps in response the CLT being exposed to sustained rainfall around Christmas 2016. The Defendant should have
Advised Stoneleigh and/or JCA, and/or the Claimant not to install the VCL in the existing wet conditions.
Instructed and/or advised the Claimant and/or JCA that moisture levels of the CLT should be tested in order to determine its moisture content. Had this been done, it would have been identified that some elements would need to dry out before the VCL was applied (thereby locking in any moisture which the CLT had absorbed and that some elements to which the VCL had already been applied had already absorbed an excessive amount of moisture.
Instructed and/or advised the Claimant and/or JCA that a raised tarpaulin cover or temporary canopy be constructed over the building (or the incomplete sections of the roof) to permit the CLT to dry out as fully as possible before application of the VCL and then to enable the roof works to be completed in a dry environment.
Insofar as any of the above matters were raised by the Defendant it should have followed up with JCA to ensure that they were being carried out and, if not, advised the Claimant that necessary steps to ensure the satisfactory completion of the works were not being undertaken.
It is understood that the Defendant may have decided not to issue any instructions or advice on the basis of an erroneous belief that the CLT would dry out from its internal face which was not covered by a VCL. Insofar as this was the Defendant's view, it was negligently wrong in that:
The CLT consisted of thick sheets which were a composite of wood and adhesive. It was unlikely that water which had entered the upper surface and edges of the timber would dry out through evaporation from the lower surface.
Hess was best placed to determine whether the CLT would dry out from the inside and when the Defendant asked Hess whether this would occur (on 22 December 2016), the Defendant received the negative response summarised in Paragraph 27 above.”
Taking each in turn
“Did the Defendant fail to use reasonable skill and care in the performance
of its services pursuant to its appointment in the ways alleged at paragraph 31 of the RAPOC, ('the alleged breaches')?
a. In failing to produce a moisture content control plan (MCCP) or risk assessment?”
It is common ground that there was no mandatory requirement to produce an MCCP. In answer to questions from the Court, the Claimant’s technical expert – Ms Hoey confirmed she herself never produced an MCCP.
[T6-960] J/KH
“Q. Can I just ask one question. If you could go to page 227 of volume D, please. Mr Potter in paragraph 8.7 says: "At no point have seen an MCCP nor been required to prepare such a document. Nor am I aware of any projects upon which such document has been prepared." In your report you do not identify your experience of MCCPs and their use on projects you have been involved in. Have you ever been asked to prepare an MCCP?
A. Not an MCCP but I have been asked to prepare risk assessments and consider the risks of various different options or design changes, etc.
Q. But never an MCCP?
A. Never an MCCP.”
Mr Potter said that even if an MCCP was to be drawn up he would expect JCA rather than the Defendant to draw up such a document.
Mr Potter stated:
"I would suggest that the party I would expect to draw up this document would be someone like JCA rather than WTA" [T6/l 038/10-11]. Further, "the phasing of the works and the protection necessary for the works, push it - place more of the responsibility on the likes of JCA because I revert to comment I made earlier, it is not WTA s responsibility or any architects responsibility to dictate how works are done. It is really up to the main contractor in this case, JCA, to do that and that effectively means they are determining things like what is your plan for drying it out if it gets wet, how are you going to protect the works" [T6/1039/4-16]
However there are two fundamental problems with this alleged breach
-1 the Defendant did produce an appropriate plan. The Defendant’s specifications functioned as an effective moisture plan.
Ms Hoey agreed that the Defendant’s Timber Frame Specification was “suitable" meaning "suitable for the project" and "a reasonable performance specification to apply to the timber frame works package" and which "took the guidance into consideration in terms of moisture protection" [T5/774/9-25] to [T5/775/2-4, 18-25].
Ms Hoey agreed that the Defendant’s Combined Specification was "a perfectly reasonable specification that is in accordance with guidance" [T6-903/3-4], and that it did refer to putting up temporary covers in adverse conditions [T6/903/5-7].
Ms Hoey's view was that if the Defendant’s Timber Frame Specification had been followed, "there would have been no water anywhere near the timber" [T5/782/13-19], and that the Defendant’s Specifications ought to have been complied with by trade contractors like Hess and Stoneleigh, as well as JCA, [T5/783/7-15]. Ms Hoey accepted that Hess ought to have complied with the Timber Frame Specification and that Stoneleigh and JCA should have been aware that the VCL should not be laid on wet CLT [T5/783/4-6], [T6/903/20-21] and Ms Hoey also agreed with the proposition that "If they had complied with the WTA specification it would have involved not putting VCL down on wet CLT” [T6/909/5-6] and the trade contractors should and could have put up temporary cover in the event of adverse weather [T6/909/11-12]
-2 A Temporary roof over the works area was not the only viable and effective way to protect the roof. The Claimant relies upon BS 6229:2003 which refers to temporary roofs being used in exceptional cases.
The factors relied upon by Ms Hoey to make this building "exceptional" were challenged effectively and conclusively by the Defendant in its Written Closing Submissions as follows:-
“(i) the Leamington Spa weather, which was essentially due to building in winter, with consequent risk of rain: if this was exceptional there would be no building could be undertaken in winter without a temporary roof and that plainly was not what happened;
(ii) the flat CLT, which was due to there being no pitch to the roof: but the BS 6229;2003 guidance all related to "flat roofs", so this point alone could not make the building exceptional;
(iii) the absence of temporary drainage: this was addressed by alternative methods of removal of water, such as brushing and vacuum pumping;
(iv) the use of sealed down VCL with insulation and a single ply membrane: this was a commonplace roof build up, and did not make a roof exceptional.”
Looking at the evidence it is clear and I so find that this building was not exceptional and did not require a temporary roof.
- Mr Ogle's evidence was as follows:
[T4-533] WW KC/AO
“Q. You accept the use of a canopy is a protection option available on a project?
A. Correct.
Q. The position, I would suggest, on a very broad, flat single storey building is rather different perhaps from a lot of the other projects you have done, four or five storey buildings where you are covering over your last bit of work to allow it to dry out as you go up by each storey?
A. True, although one of my most recent projects is working for Department for Education on their platform for timber schools, to be able to use UK grade timber. Most of those are very large single storey buildings. None have been procured using a canopy.”
- Mr Westwood’s evidence was that:
“I have never worked on a project involving a canopy but I would also say I have never heard of any architect ever designing a canopy." [T3/439/3-5]
- Mr Potter explained that “in39 years" of practice [T7-1140/24-25] despite being involved in "the high 60s number of projects" involving timber [T7/1118/8-18] and having done around "40 flat roofs" [T7/1141/2] he has only ever used a temporary canopy in four cases [T7/1140-1141/25-2]. Those cases were "all existing buildings" [T7/1141/16]. Mr Potter explained that this kind of protection would predominantly be used on an occupied building, [T6/1064/5-11].
A timber roof does not make a building "exceptional". Mr Potter explained
[T6-989] SP
Given the number of brick and masonry buildings that I have taken to pieces over the years which have been seriously damaged by moisture, I would not distinguish a timber building as being necessarily of greater risk. Moisture is a risk to all buildings, whatever the fabric they are constructed from.
[T6-990] WW KC/SP
Q. So, to be absolutely clear, you do not agree that in general terms, timber buildings are at greater risk of moisture and water damage than more traditionally built buildings?
Mr Webb through an extremely robust and thorough cross-examination tried to suggest to Mr Potter that there were particular risk factors pertinent to this building [T6/988/23] to [T6/999/10]. These were rebuffed by Mr Potter.
Notably, he did not accept that timber buildings were inherently riskier than those made of brick, as regards moisture.
Mr Potter also did not accept that the existence of a parapet inhibited the provision of drainage once drainage holes had been cut.
Nor did he consider that this case was particularly risky because of the application of VCL, given "There is no flat roof that does not have a VCL as far as I am aware, with vertical insulation above the VCL."
Building in winter was not riskier than building in Summer. He did, however, accept that there would be fewer daylight hours in Winter and generally colder temperatures. But he noted that the limiting criteria are not necessarily sunlight and temperature, but also relative humidity (since when it is lower the timber will dry out more quickly). In re-examination, he also referred to "the movement of air across the surface of the timber" and, if the relevant space was enclosed, the use of dehumidifiers.
He accepted that a sloped roof would be a lesser risk than a flat roof.
On these points I accept Mr Potter’s evidence as being correct.
This is a claim for professional negligence. It is relevant to consider that Ms Hoey or Chris Miers when they initially investigated the defective roof knowing that it had become saturated after prolonged exposure to winter weather did not suggest that a temporary roof should have been used. Ms Hoey in her first, CPR Part 35 compliant report in 2022 made no such suggestion. See Ms Hoey’s evidence below:
[T5-748] SM KC/KH
“Q. And in 2022, when you were instructed to look at whether there had been professional negligence by WTA, neither did you?
Neither did I come to a conclusion at that stage that it should have been built under a temporary roof, is that your question?
Q. Yes.
A. That is correct.”
In April 2017, Mr Chris Miers, of Probyn Miers, carried out a brief, high level review and report, [E6-18301] did not make any mention of a lack of a temporary roof during construction.
In April 2018, Mr Miers carried out a presentation at a multi-party meeting, which was again reported upon by him, and once again he did not mention, even though he was looking at 'what went wrong', that there was a lack of a temporary roof during construction.
See Ms Hoey’s evidence below
[T5-743] Re: E6-1830, G3-247 SM KC/KH
Q. And as he says at the top of the page 1830: "Brief review of concerns arising from prolonged exposure of the timber to the new Vitsoe building in Royal Leamington Spa." He says underneath: "This is brief high level overview of concerns"?
A. Yes.
Q. Then he continues -- "The concerns arise because the frame and CLT was left exposed to the winter weather for some 12 weeks before being closed in. "
A. Yes.
Q. So Mr. Miers is very much aware that the issue is that the CLT was left exposed to winter weather?
A. Yes, that would----
Q. Yes.
A. That is said.
Q. It would appear that, despite knowing that the concerns arose from this, once again there is no mention in his report of any lack of a temporary roof during construction?
A. No, I do not think that is mentioned at all.
Q. And you are aware also, are you not, that Mr. Miers conducted a multi-party meeting a year late, 11th April 2018, yes?
A. Yes.
[T5-747] SM KC/KH
6.43, it confirms -- "It was confirmed that the VCL membrane and roof build up went down over a wet CLT substrate. "
Yes. I can see that.
Q. You know who CD is, I will tell you Craig Dedicoat?
A. The Stoneleigh gentleman, yes.
Q. He stated that this was due to programme pressure. Yes?
A. That is what it says, yes.
Q. And as you have already answered, he does not mention anything about a lack of temporary roof?
A. Not in the list of issues under construction, no
Q. Pausing there for a moment, we have had your -- we have had Mr. Miers doing this investigation in 2017/2018 and he does not mention that, the problem here, because he was specifically looking at what went wrong. He does not say that the problem here was a lack of temporary roof during construction?
A. No, he does not. He does talk about the fact that moisture has got in, so -- and he does not specifically say, "Well, it would not have happened if there had been a roof over it".”
In the circumstances of this case in 2016 or 2017 I find and so hold that there was no obligation upon the Defendant to undertake a MCCP or risk assessment. In any event the Defendant’s combined specifications were reasonable, suitable and if complied with there would “have been no water anywhere near the timber.” The Defendant provided a suitable and robust specification which provided adequate and suitable information for moisture control. In 2016 or indeed 2017 the Defendant was not obliged or was not required to produce an MCCP or a risk assessment relating to moisture control. Furthermore if a MCCP risk assessment had been carried out the Defendant would not have recommended a temporary roof and I am satisfied on the evidence of the conversations between Mr Waugh and Mr Adams that if a temporary roof had been recommended by the Defendant the Claimant would not have proceeded with a temporary roof.
I also find and so hold that the use of close sequencing is a reasonable and acceptable option in lieu of a temporary roof for the following reasons:
Close sequencing between CLT installation and roof covering is a legitimate method of construction. It was listed as an option for reducing the risk of trapping water during construction in BS6229:20043.
Close sequencing was advised by the Defendant when the Defendant noted in its “Project Bulletin” single ply membrane to quickly follow CLT installation on site.
Hess the specialist contractor chosen by the Claimant itself stated that “Our programme is devised to close in the building as soon as possible. We will continue to minimise the moisture uptake through experienced planning of the installation.”
In particular I find and so hold that the programming of the construction of the roof was not the Defendant’s responsibility. The protection of the roof works was not the Defendant’s responsibility. The supervision and management of the trade contractors was not the Defendant’s responsibility.
JCA, Hess and Stoneleigh were all responsible for programming the works such that there would be close sequencing between Hess’ CLT works and Stoneleigh’s roof covering works. JCA, Hess and Stoneleigh all had responsibilities for the protection of the works on site.
The Defendant acted competently in realising that it was not necessary to erect a temporary roof over the whole of the roof works area.
Close sequencing is a suitable and appropriate method of moisture protection. JCA, Hess and Stoneleigh were all content with close sequencing as the appropriate method of moisture protection. There was nothing about this project that meant a temporary roof was required. Other specialists such as Probyn Miers, Exova BM Trada and Store Enso did not state that the lack of a temporary roof was an obvious mistake which was responsible for the water damage.
In all the circumstances I find that the Defendant was not acting in breach of duty and was not negligent in not advising or recommending a temporary roof.
For the sake of completeness I do not find that the judgment of HHJ Pelling in Sky UK Limited and another v Riverstone Managing Agency Limited & Others [2023] EWHC 1207 (Comm) is helpful or relevant to the facts of this case. HHJ Pelling KC found on the facts before him that the inclusion or not of a temporary roof was a design not a construction issue. However that was a case concerned with different facts and different contractual arrangements and a markedly different design concept.
Did the Defendant fail to use reasonable skill and care in the performance of its services pursuant to its appointment in the ways alleged at paragraph 31 of the RAPOC (“the alleged breaches”)
In failing to identify that Hess’ tender contained no adequate moisture protection during construction?
This alleged breach overlaps quite considerably with the previous alleged breach of duty. What the Claimant contends is that any review of Hess’ tender should have alerted the Defendant to reconsider the need for a MCCP/risk assessment and that would have inexorably led to the use of a temporary roof.
However for the reasons and findings made in respect of the first alleged breach of duty that process would not have led to the use of a temporary roof. That is largely a complete answer to this second alleged breach of duty.
Not only do I find that the Defendant cannot be criticised for failing to identify Hess’ tender contained no adequate moisture protection during construction. I find that on the evidence which I have read and heard.
-1 The Defendant had an extremely limited role in considering the tenders.
Kingerlee and not the Defendant
- prepared the tender package of documentation.
- produced the agenda and score sheet in the interviews.
- reviewed and reported back to the Claimant in respect of the tenders.
-2 The Defendant had very limited obligations to review Hess’ tender. The Defendant was only obliged to review and report upon subcontractors tenders “where required”. On the facts of this case I am satisfied that the Defendant was not required to review and report upon Hess’ tender.
-3 The Defendant was not required to report upon or to conduct an appraisal of Hess tender. The Hess tender was reviewed, appraised and reported upon by Kingerlee and Vincent Wang. The agreed chronology records, that:
“5 March 2016 - Vincent Wong circulated his analysis of timber package tender and recommended Hess.”
The Claimant did not require the Defendant to report upon or to conduct an appraisal of Hess’ tender.
-4 However despite all that the Defendant did report upon Hess’ tender on the 4th November 2016 [F2/65] and in its second architect’s report where the Defendant stated:
HESS design co-ordination: ...Hess are providing temporary water protection to the Baubuche and CLT and have been liaising with JCA regarding weather protection and temporary rainwater drainage during construction. A small number of holes are to be cut in the CLT on site for rainwater outlets and the roof access hatch. WTA to coordinate with JCA as to whether Stoneleigh can cut these."
Hess had committed to provide temporary weather protection to the CLT. It was common ground, from the outset, that the intention was to rely upon close sequencing. There was no obligation for the Defendant to consider that the tender needed amending for further weather protection purposes and certainly there was no obligation to recommend that a temporary roof must be provided.
Did the Defendant fail to use reasonable skill and care in the performance of its services pursuant to its appointment in the ways alleged at paragraph 31 of the RAPC (“the alleged breached”)
In failing to take appropriate steps in response to the CLT being exposed to sustained rainfall around Christmas 2016.
The factual background to the events leading up to the events around Christmas 2016 is the context within which this allegation of breach of duty must be considered.
There are a number of points in the correspondence where one could start this investigation. I will start with Tom Westwood’s email dated the 16th November 2016. It also illustrates that contrary to the Claimant’s submission he did not operate as a post box.
The first email on this topic is:
“From: Tom Westwood <[email protected]>
Sent: 16 November 201615:14
To: Adrian Kenny; Oliver jung
Cc: Simon Garwood; [email protected]; Alastair Ogle; Francesca White; Clive Williams
Re: 16953 Vitsoe: roof drainage during installation?
Adrian/ Oliver,
I realise I didn't attach my markup of the Hess programme, however the other point to raise is regarding Xmas shutdown.
4/ Xmas shutdown.
a/ What is the period that the site is closed?
b/ The programme shows that Hess will have just started installation of phase Ill before Xmas, and as such the CLT would be unprotected over the Xmas shutdown. Is this advisable or should phase Ill installation be commenced after Xmas.
c/ In addition i would doubt there is time for Stoneleigh to protect the phase II roof between the phase II completion by Hess and the Xmas shutdown, leaving this unprotected over Xmas also.
Thanks.
Time Westwood - Associate
JCA’s response was sent the same day and stated:
“On 16 Nov 2016, at22:59, Adrian Kenny <[email protected]> wrote:
Tom,
xmas shutdown will be 23rd- 3rd Jan 17
Our working programme will deal ·with the phasing and coordination with
other trades.”
This was followed up by an exchange of emails between WTA and AMK Construction as set out below:
On Fri, Nov 18, 2016 at 10:55 AM, Tom Westwood <[email protected]> wrote:
Hi Adrian,
Thanks for your time on the phone yesterday to talk this through. You explained that you are like to have handovers from Hess in 3-bay sections (so every 5 days or so). Thereafter your roofer will lay the bottom (secondary) waterproofing layer onto the CLT as a priority to act as temporary waterproofing before the full roof buildup is in place.
Yours
Tom Westwood – Associate
From: Adrian Kenny <[email protected]>
Sent: 18 November 2016 11:07
To: Tom Westwood
Cc: Oliver jung; Simon Garwood; [email protected]; Alastair Ogle; Francesca White; Clive Williams
Subject: Re: 16953 Vitsoe: roof drainage during installation?
Hi Tom
Yes that's the plan with the proposed roofing contractor although they haven't been formally appointed yet which is a risk outside of JCA's control however we hope to resolve this with the client team next Wednesday
fingers crossed that the CLT install goes to plan and the weather is kind to -us.”
Ms White employed by the Defendant on a site visit on the 8th December 2016 noted that temporary protection was missing in some places and reported this in the Architect Report dated 12 December 2016.
On the 22nd December Ms Ogle asked Hess for advice copied to the Claimant regarding unprotected wet CLT panels.
“Von: Alastair Ogle [mailto:[email protected]]
Gesendet: Donnerstag, 22. Dezember 2016 16:58
An: Rensteph Thompson; Oliver Jung
Cc: Andrew Waugh; Tom Westwood; Mark Adams; Simon Garwood
Betreff: Re: Installing Roofing Membrane on Wet CLT
Dear Rensteph / Oliver,
Re: Installing Roofing Membrane on Wet CLT
During installation there has been some rainfall on the CLT roof panels, and as they were, not protected during erection the roof panels have become wet. The Vapour Control Layer (bottom layer of the roofing buildup) is then being installed before the CLT has fully dried out. Our understanding is that the CLT will dry out from the inside as it is exposed internally, is this correct. Will this be possible with the temporary treatment/coating applied internally?
Please can you provide your comments on this process and if the roof is ready to receive the roofing while wet.
Alastair Ogle Associate”
The same day Hess responded suggesting Plotform measure the moisture content of the CLT panels.
- Heading
- THE PARTIES
- THE PROJECT
- THE WITNESSES
- THE AGREED CHRONOLOGY
- THE EXPRESS TERMS OF THE AGREEMENT BETWEEN THE PARTIES
- SCOPE OF DUTY
- THE ALLEGED BREACHES OF DUTY
- “From: "Rensteph Thompson" <[email protected]>
- H. QUANTUM
- Betterment if no deduction made in respect of Northlight (£25,000) [D-369]
- CONTRIBUTORY NEGLIGENCE
- Conclusions