That is Constructors apparently claims a liquidated sum of $820,125 plus interest and costs.
Present Position in Relation to the Final Hearing
29 The final hearing was fixed to commence on 19 April 2004. The proceedings which commenced in 1999 had had a relatively regrettable degree of progress, as the sundry associates' notes in the court file makes plain.
30 Early during the commencement of the final hearing I inquired of the parties as to whether or not, and if so when, consideration had been given by the parties or during the case management of the proceedings, to the question of the whole or part of the proceedings being the subject of a Part 72 reference to an appropriately qualified person with a background, presumably, in either architecture or engineering or both. As I have been given to understand the position by the parties, they did give consideration to this matter but were unable to agree upon a referee. As Mr Grieve QC, leading counsel for the plaintiffs, has indicated, there is a note on the further amended cross-claim suggesting the appropriateness of at least certain questions for referral. Apparently the attention of the list judge was not specifically directed to the particular utility of a Part 72 reference. However, during opening addresses and during the course of the Court taking objections to the first witness statement put forward by the plaintiffs, it has become more and more clear to me that there are indeed very special reasons why the final hearing should be vacated and a Part 72 reference should, even at this stage, be ordered. Ultimately, as will appear from what follows, as I understand it, all counsel have agreed with this proposition, albeit at various levels and in relation to various approaches to which matters would be appropriate for reference, even at this late stage, to a referee.
The Technical Issues
31 A particular new development involves a joint report by the experts, Professor Rice and Mr Poiner following a conclave held on 19 April 2004. The discussion of issues in the proceedings which follows should be read as subject to such issues as may have fallen away entirely or been substantially reduced as a matter of significance by reason of that report. A very significant factual issue in the proceedings [subject as I say to aspects by which issues may have been reduced by that joint report] would involve an examination of architectural and engineering drawings in a context in which the issue would be as to whether drawings produced by the architects were deficient as being either insufficiently clear or being incomplete or deficient or not being properly co-ordinated. The issue is perhaps, at least in part, now collapsed by the measure of agreement by these experts. The extent to which that may be the case is apparently not the subject of clear agreement at the Bar table.
32 Associated issues will concern the assessment of the effective design changes in terms of the programming of work; the assessment of the level of co-ordination required between consultants and/or the need to refer to other consultants; the assessment [in terms of the flow-on effect in terms of additional work required] where design changes were concerned. Other issues will concern the adequacy of detail for tenderers [that is to say for other specialist contractors]. Other issues will concern whether particular deficiencies in architectural documents led to particular problems in relation to the preparation of structural steel documentation. Further issues will concern what was the ability of a structural steel detailer or fabricator to understand particular designs. Another issue will be what was the level [concerning the depiction of the structural steel components required to be fabricated] required to be included in architectural drawings, to permit the structural steel detailer or fabricator to understand the design and on the basis of which to permit such structural steel detailer or fabricator to be able to put forward a commercially competitive tender. Other issues will concern what events or matters will affect an architect in the process of preparing architectural documentation. Another issue concerns what is involved in the preparation of architectural documents, and in particular, what requirements are there to have changes made to such documents and what effect would such changes have upon documentation not necessarily directly connected to structural steel. Another issue will concern whether particular drawings show a level of particular competence or incompetence and the gradation of competence in this regard. As I have said more than once, some of these issues may be now minimised or clarified by the measure of agreement which the experts have apparently been able to agree upon.
33 The judgment delivered yesterday on the admissibility of evidence sought to be put forward by the plaintiffs' first witness, Mr Farrant, gives further detail of these issues and how they arise. It is unnecessary, for obvious reasons, to repeat what appears in that judgment which in its revised form should be available shortly.
34 The occasion of the taking of objections to the statements by Mr Farrant has served, as it happens, as the vehicle for pointing out the degree of detail to which the parties intend to descend in litigating the above-described issues. There is no doubt at all but that the more appropriate mode for the litigation of the above-described technical issues would be for an appropriately qualified expert to be appointed as a Part 72 referee. Whilst such a referee would of course determine the precise procedures to be determined during the reference, such a person, being obviously versed in the subject disciplines, would not require anything remotely like the detail which a trial judge would require in terms of description of particular aspects of the numerous plans which will fall for examination in the above described context. Such a referee could be expected to "speak the same language" as the witnesses who are to give evidence on these technical issues and to be in a position to extremely quickly follow and get to the bottom of the technical matters which will require to be understood in order to follow the respective cases. Additionally, the Court has been informed that there are many minutes of construction meetings, programming schedules and the like which will be the subject of detailed cross-examination, with which issues also such a referee could be expected to be very familiar.
35 Another of the complex set of technical issues concerns the defendants' case that as a matter of fact the project was "fast tracked", which I understand to be a reference to the notion that design and construction occurs at the same time. The matter apparently arises:
· in terms of the defendants' case that at a particular meeting they informed the plaintiff [s] that the subject drawings would not be co-ordinated and were in turn advised that this was not seen as a difficulty;
· in terms of the actual position on the ground.
36 This again appears to me to be a set of technical issues which par excellence is tailor-made for determination pursuant to a Part 72 reference to an appropriately qualified referee.
37 Following the discussion between the Court and the Bar table of yesterday, when the matter was resumed before the Court this morning Mr Grieve QC addressed detail on a number of matters. The first concerned the signed record of conference to which I have referred. A copy of that document will be appended to this judgment. The submission which followed from the plaintiffs' side of the Bar table was that the measure of agreement shown by this record of conference has self-evidently put a number of issues to rest.
38 Whilst I do not intend, for obvious reasons, to comment on whether this summary of the document is accurate and if so in what precise respects, it does seem to me clear that there will at least remain as a live issue to be litigated in the proceedings, the question of whether or not, and if so as a matter of fact, the evidence discloses the employment of what amounted, in colloquial terms, to a "fast track" approach to documentation and construction. Hence, it seems to me clear that a deal of the evidence is certainly likely to concern the requirement for a determination on that issue.
39 I make plain that Mr Grieve QC for the plaintiffs has emphasised during address that the plaintiffs' central case is that the contractual obligation of the defendants was to produce properly completed, detailed and properly co-ordinated drawings at an early point of time. The plaintiffs' case, as I understand it, is that all that the defendants are about in this litigation is [in an attempt to exonerate what is put as their clear contractual and common law liability] to put forward the proposition that events following the initial production of these drawings by the architects, [by way of occasions when it was necessary to have variations for various reasons] provide a legitimate basis by which the defendants are able to explain their subsequent conduct.
40 At the end of the day, from submissions from both sides of the Bar table, it has become apparent that a likely central issue in the whole of the proceedings will concern questions of degree, that is to say it will be necessary for a referee to examine in each instance whether, and if so to what extent, changes to instructions to the architects could be regarded as minor or major.
41 The next matter which was the subject of address by Mr Grieve concerned the attempt to formulate, albeit in overview fashion, a particular issue which both counsel for the plaintiffs have apparently distilled as clearly suitable for a Part 72 reference even at this late stage. This issue was expressed, albeit in broad terms which may require further examination by the parties and the Court, as follows:
· the first formulation was:
"The issue which the document produced by the experts and signed by them exposes as appropriate for determination by a referee is the extent to which the incompleteness, inaccuracy and/or lack of co-ordination of the drawings identified in paragraph 5 bore adversely upon the steel contractor's capacity to manufacture and install the steel components in accordance with his subcontract so as to give rise to legitimate or reasonable claims on the part of that subcontractor against the head contractor."