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CoC - Royal Brompton Hospital Saga

CoC - Royal Brompton Hospital Saga

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Published by: b165 on Mar 19, 2010
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Construction Commercial Contracts Insurance & Reinsurance Personal Injury Product Liability Professional & Clinical Negligence
ByAntony Edwards-Stuart QC
The trustees of the Royal Brompton Hospital (RBH) sued the project managers, architects, andmechanical & electrical engineers for a number of problems that arose during the construction of the hospital which resulted in the main contractor being granted extensions of time to cover the fullperiod of the contract overrun (42 weeks) and led to arbitration proceedings between RBH and thecontractor. RBH paid the contractor some £5 million in respect of its claims for loss and expenseand then settled the contractor’s further claims in the arbitration for about £6 million.RBH sought to recover those sums, or much of them, together with lost liquidated damages, fromthe defendants. After a protracted history of interlocutory battles, the main issues of liability cameon for trial before HH Judge Richard Seymour QC in October 2000.After a short period for reading the pleadings and principal experts reports, the case was openedbefore Judge Seymour on 18/19 October. Very early on during the opening the judge indicated thathe was concerned about a number of aspects of RBH’s case, particularly in relation to the expertevidence and causation. However, the opening was completed and the trial adjourned for a week toallow the judge further reading time. When the trial resumed on 30 October the judge indicated that
Construction Commercial Contracts Insurance & Reinsurance Personal Injury Product Liability Professional & Clinical Negligence
 he was minded to strike out of his own motion most of the claims that RBH was advancing in thatsub-trial. There followed three days of argument, after which, on 2 November, the judge struck out9 of the 12 heads of claim before him, leaving the remaining 3 to be tried during the ensuing fewweeks. Permission to appeal was refused. The 3 remaining claims involved alleged negligence bythe architects and project managers in relation to the grant of extensions of time (EOT), and a claimagainst the M&E engineers in relation to late delivery of co-ordination drawings.The EOT trial started the following week and continued until 28 November. In the meantime,RBH’s junior counsel had to leave the trial in order to prepare a notice of appeal, which wassupported by a detailed skeleton argument and 4 ring binders of documents. RBH appealed againstthe striking out of 7 of the 9 claims. The application for permission to appeal was dealt with veryspeedily by the Court of Appeal, who gave RBH permission on 23 November. In the light of thisdevelopment, RBH applied unsuccessfully to have the claim against the M&E engineers for latedelivery of the drawings adjourned pending the outcome of the appeal against the striking out of similar claims against the architects and project managers. The judge refused and ordered thehearing of a preliminary issue on this claim, which he proceeded to hear and determine straight afterthe end of the EOT claim. After 3 days of evidence and argument, the judge decided this issueagainst RBH and then dismissed the claim.The result of all this was that RBH succeeded to a small extent on the EOT claim against thearchitects, but lost everything else.The appeal against the strike out and the refusal to adjourn the claim for late delivery for thedrawings was heard over 4 days in February 2001. The Court of Appeal allowed the appeal andreinstated all 8 claims, and indicated that they should be tried before a different judge. All thedefendants applied to the Court of Appeal to vary its judgment, but after further submissions andargument, the applications were refused.The re-trial of the issues of liability took place in June 2001, before HH Judge Humphrey LLoydQC. The trial finished at the end of July. Judgment was reserved. It was eventually delivered indraft (over 200 pages) at the end of September 2002. RBH won 7 of the 8 claims struck out ordismissed by Judge Seymour and reinstated by the Court of Appeal. It lost the claim against the
Leading Counsel for the RBH.
Construction Commercial Contracts Insurance & Reinsurance Personal Injury Product Liability Professional & Clinical Negligence
 architects for failing to ensure that the M&E engineers issued their drawings on time, but succeededagainst the project managers on the same claim (so the damages recoverable were not affected). Italso succeeded on two further small claims against the architects and project managers.Damages, which (like everything else in this case) are bitterly contested, remain to be assessed at afurther hearing. Attempts to appeal against the judgment on liability are bound to follow.In the meantime, the architects’ appeal to the House of Lords, against the striking out of their claimfor contribution against the main contractor, was heard in April 2002 and dismissed.Quite apart from the enormous costs, stress and anxiety which this litigation has generated over thepast two years, three particular features call for comment in relation to the hazards and risks of litigation.First, in the course of the trial two witnesses, one of them the principal expert for the M&Eengineers, were unable to give evidence as a result of ill health brought about by the stress of thecase. In addition, RBH had to call its principal M&E expert’s assistant, because the principal M&Eexpert had undergone heart by-pass surgery earlier in the year at about the time of the hearing of theappeal.Second, the two judges who heard evidence from three witnesses who gave evidence at each of thetrials reached very different conclusions about the quality of that evidence. Most striking was thecase of the evidence given by a former partner of the M&E engineers. The first judge found him tobe “an impressive and careful witness”, whose evidence he accepted “without reservation on allmatters about which he gave evidence”. The second judge thought differently. He said that thiswitness was rightly described as “partisan and argumentative” so that he could not “place muchstore by his evidence”. The judge rejected his evidence on a number of specific points, and evenwent so far as to say that it made him “wonder why RBH’s case on the aspect of liability was beingdefended” by the M&E engineers.The final irony is that HH Judge Humphrey LLoyd QC criticised the report of the M&E engineers’principal expert (who did not give evidence) on the grounds that, unlike the work of RBH’s experts,it did not provide enough reasoning to support the conclusion that the co-ordination drawings were

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