Here the court issued declarations concerning interpretation of a professional appointment. The contractor, MW, had been appointed under an EPC contract to build a waste to energy plant. It in turn appointed Haase as a process engineering designer. The appointment included an overarching obligation to design using reasonable skill and care, and a specific provision that the design should not be developed in such a way as to increase the overall cost of the (fixed price) EPC contract. Ultimately Haase developed an enhanced design which meant the plant cost more to build than the price of the EPC contract. Initially MW attempted to claim the costs associated with part of the enhanced design in an adjudication, but the adjudicator found for Haase. MW then requested a declaration from the court concerning how Haase's appointment was to be interpreted. Coulson J found that it was appropriate for the court to make a declaration, and that this was in fact a good way of dealing with a challenge to an erroneous adjudication decision. The court held that, in the hierarchy of principal obligations, the duty to exercise reasonable skill and care was 'paramount'. Below these obligations were the secondary obligations relating to design development. Coulson J found that if Haase could develop a design consistent with the EPC delivery plan (i.e. not enhanced) which was not negligent, than they should do so, in contrast to the adjudicator, who found that, providing Haase's design was not negligent, they could not be in breach of contract. Coulson J found that they were obliged to comply with the EPC delivery plan, and accordingly the alleged over-design was a breach of contract. He also found that Haase might reasonably be aware that a departure from the EPC delivery plan would involve costs that MW would be unable to recover, and accordingly it was not unfair to expect them to pay the costs consequences. This decision is likely to provide reassurance to contractors entering into fixed price D&B or EPC contracts.
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