in the most recent instalment of the Wembley Stadium saga, the Court considered a clause in the architect's Terms of Engagement providing for a review of their services. The Court decided that the clause remained effective notwithstanding that the services had been completed and, indeed, would have little or no commercial purpose if any other interpretation was adopted.
The Wembley "saga" has now dragged on for nearly three years in the courts but the latest judgment marks a new phase. The contractors for the project, Brookfield Construction (UK) Limited (formerly Multiplex) are now proceeding against the structural engineers Mott MacDonald for some £250 million in respect of alleged failings in their performance. In order to progress this claim they requested the assistance of the architects known as World Stadium Team comprising Foster & Partners Limited and HOK Sport Limited. The architectural team were not prepared to cooperate and the contractors sought a declaration from the Court as to the extent of their obligations in this regard. The matter was heard before Mr Justice Coulson on 23 February.
The clause at the centre of the dispute provided that the consultant was to provide the contractor with access to personnel and documentary material to carry out a "full systematic review" of any part of their services and that the architectural team were not entitled to any additional payment for compliance with this clause. They were also obliged to retain all pertinent records relating to the services for a 15 year period. The contractor was to have access to such records at all reasonable times.
The Court described this clause as an unusual provision in that it promised access to personnel as well as access to documents. Furthermore it related to a review of any part of the services. However, it is apparently a common clause in the contracts for the Wembley professionals.
The first question arising for the Court was as to whether the obligation ceased when the services were completed. The Court unequivocally found that it did not mainly in the light of the word "review" being used. There would be no purpose in such a review unless the service to be reviewed had first been completed. Otherwise the review might be premature and end up wasting everybody's time and effort. It was of course possible that part of the services could be reviewed following their completion, although other services were still ongoing. Although there was some potential overlap with the records clause, the access provisions covered a wider range of documents that would include both access to personnel and to internal emails, neither of which were covered in the records clause. The clause did not necessarily relate to claims by or against third parties on the part of the contractors although the issue of the context of the dispute was relevant to the scope of the obligation.
The Court considered that the contractors had to accept that some of the architectural team's personnel might no longer be available and that there was no obligation on the architectural team to retain them merely to assist in the process. It was for the contractor to prepare the necessary documentation and they would have to be content with whatever recollections the architectural team's personnel could offer in relation to them. It would be necessary for the contractors to prepare specific questions and provide them to the architectural team in advance as well as identifying the documents which the contractors had prepared. The Court indicated an approximate time scale for the review to take place.
The Court also noted that the architectural team should consider undertaking pre-meeting research, subject to their existing commitments. They had an overriding obligation to cooperate as set out in the case of Merton (1985). The case demonstrates that, if the appointment contract expressly so provides, consultants may be required to undertake or assist in reviews of the services they have provided without being entitled to charge additional fees for such reviews. Employers or contractors may wish to incorporate such a clause in their standard terms of appointment, although in the light of this case they may well now face demands for additional fees, probably on a time basis. The clause drafting should also expressly provide expressly that such review or reviews may be carried out either during or following the conclusion of the consultant's services.