Construction analysis: How will the courts approach the issue of expert evidence in the context of construction cases, particularly the payment of fees? Emily Monastiriotis, partner at Bond Dickinson, cautions practitioners to properly guide experts not to act as party advocates.

Original news

Pickard Finlason Partnership Ltd v Lock and another [2014] EWHC 25 (TCC), [2014] All ER (D) 121 (Jan)

The claimant, a professional building design consultancy practice, brought claims for payment of fees after the defendants had failed to proceed with a development project for which the claimant had prepared a revised scheme. The Technology and Construction Court held that, on the facts, the claimant had failed to establish its claims in circumstances where it had been in repudiatory breach of the contract in failing to comply with its obligations under the contract. The defendants were granted judgment on their counterclaim in the sum of £1,650.

What were the issues raised by this case?

The starting point when considering this case is that it is very fact specific. It focuses upon the obligations of  a firm described as a multidisciplinary professional building design consultancy practice (the consultants) which entered into a bespoke form of contract with the defendants (the employers). The employers had purchased a well-known listed building which they planned to subdivide into self-contained flats and engaged the consultants to provide what the court described as a full professional service in relation to design and construction.

The key issue that the court had to decide was the employers' liability for payment of fees claimed by the consultants. In reaching his conclusions, the judge helpfully considered a number of issues including:

  • whether the consultants were in repudiatory breach because they refused to do what the judge found they should have done--he found they were
  • whether the consultants were required to meet a condition precedent in order for fees to be-
  • come due, that they should 'establish post planning permission a firm and accurate costs for the building works'--again, he found there was indeed such a condition precedent
  • the expert evidence and the experts' conduct, in respect of some of which the judge considered
  • they were 'guilty of descending into the arena and arguing the case for their specific clients'

Is the judgment helpful in clarifying this area of law?

While the judgment cannot be said to establish new law, the judge's approach to contract interpretation is well worth noting. The issue that the judge had to decide is whether the consultant was required, at the post planning permission stage, to establish accurate costs of the works before it could render an invoice. It all turned on the wording used in the consultant's contract.

The judge started by saying the employer's argument was 'inconsistent with a common sense commercial approach to the construction of the contract'. However, he was then swayed by the fact that he had to construe the document as a whole--and he was not willing to reject words as absurd or inconsistent when  you could, in fact, give them their natural and ordinary meaning. So in this case it was clear the judge was swayed by a construction of the contract that was more consistent with the plain and ordinary meaning of the words.

What lessons can be learned from this case?

The three big lessons are:

  • be prepared for a court to interpret the plain and ordinary meaning of a contract
  • make sure you properly guide experts to act as truly independent and in accordance with the Civil Procedure Rules 1998/3132, Pt 35 rather than as party advocates, otherwise their evidence will not go down well with the judge
  • the usual mantra--try to settle! The judge summed this up by saying 'it is a matter for regret that what had been an extremely good working relationship...has deteriorated to such a level that the parties have been unable or unwilling to settle their differences and have instead expended such substantial amounts of time, money and, I am sure, stress and anxiety in their pursuit and defence of their respective claims'.

Does it give rise to any particular issues that lawyers should now watch out for?

One of the many striking features of this case was the sheer number of factual issues that the judge had to decide in this case. Clearly witness evidence was key as was the drafting of the statements. While all the witnesses came across as decent and honest people, the key witnesses had, in some instances, persuaded themselves of a version of events that was more suited to their case.

Furthermore, the judge (with the assistance of the engineering experts) had to decide the 'buildability' of a revised scheme that the consultants produced that was at the heart of the case. The judgment is a useful reminder that when assessing buildability the court will look not only at technical issues but also at whether it is feasible in a practical sense.

This article was first published on Lexis®PSL Construction on 6 February 2014