coc - royal brompton hospital saga

8/9/2019 CoC - Royal Brompton Hospital Saga

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Construction Commercial Contracts Insurance & Reinsurance Personal Injury Product Liability Professional & Clinical Negligence

THE SAGA OF THE

ROYAL BROMPTON HOSPITAL CASE:

THE RISK OF LITIGATION

By

Antony Edwards-Stuart QC1

The trustees of the Royal Brompton Hospital (RBH) sued the project managers, architects, and

mechanical & 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 full

period of the contract overrun (42 weeks) and led to arbitration proceedings between RBH and the

contractor. RBH paid the contractor some 5 million in respect of its claims for loss and expense

and then settled the contractors further claims in the arbitration for about 6 million.

RBH sought to recover those sums, or much of them, together with lost liquidated damages, from

the defendants. After a protracted history of interlocutory battles, the main issues of liability came

on 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 opened

before Judge Seymour on 18/19 October. Very early on during the opening the judge indicated that

he was concerned about a number of aspects of RBHs case, particularly in relation to the expert

evidence and causation. However, the opening was completed and the trial adjourned for a week to

allow the judge further reading time. When the trial resumed on 30 October the judge indicated that


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he was minded to strike out of his own motion most of the claims that RBH was advancing in that

sub-trial. There followed three days of argument, after which, on 2 November, the judge struck out

9 of the 12 heads of claim before him, leaving the remaining 3 to be tried during the ensuing few

weeks. Permission to appeal was refused. The 3 remaining claims involved alleged negligence by

the architects and project managers in relation to the grant of extensions of time (EOT), and a claim

against 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,

RBHs junior counsel had to leave the trial in order to prepare a notice of appeal, which was

supported 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 very

speedily by the Court of Appeal, who gave RBH permission on 23 November. In the light of this

development, RBH applied unsuccessfully to have the claim against the M&E engineers for late

delivery 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 the

hearing of a preliminary issue on this claim, which he proceeded to hear and determine straight after

the end of the EOT claim. After 3 days of evidence and argument, the judge decided this issue

against RBH and then dismissed the claim.

The result of all this was that RBH succeeded to a small extent on the EOT claim against the

architects, but lost everything else.

The appeal against the strike out and the refusal to adjourn the claim for late delivery for the

drawings was heard over 4 days in February 2001. The Court of Appeal allowed the appeal and

reinstated all 8 claims, and indicated that they should be tried before a different judge. All the

defendants applied to the Court of Appeal to vary its judgment, but after further submissions and

argument, the applications were refused.

The re-trial of the issues of liability took place in June 2001, before HH Judge Humphrey LLoyd

QC. The trial finished at the end of July. Judgment was reserved. It was eventually delivered in

draft (over 200 pages) at the end of September 2002. RBH won 7 of the 8 claims struck out or

dismissed by Judge Seymour and reinstated by the Court of Appeal. It lost the claim against the

1Leading Counsel for the RBH.


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architects for failing to ensure that the M&E engineers issued their drawings on time, but succeeded

against the project managers on the same claim (so the damages recoverable were not affected). It

also 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 a

further 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 claim

for 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 the

past 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&E

engineers, were unable to give evidence as a result of ill health brought about by the stress of the

case. In addition, RBH had to call its principal M&E experts assistant, because the principal M&E

expert had undergone heart by-pass surgery earlier in the year at about the time of the hearing of the

appeal.

Second, the two judges who heard evidence from three witnesses who gave evidence at each of the

trials reached very different conclusions about the quality of that evidence. Most striking was the

case of the evidence given by a former partner of the M&E engineers. The first judge found him to

be an impressive and careful witness, whose evidence he accepted without reservation on all

matters about which he gave evidence. The second judge thought differently. He said that this

witness 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 even

went so far as to say that it made him wonder why RBHs case on the aspect of liability was being

defended 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 RBHs experts,

it did not provide enough reasoning to support the conclusion that the co-ordination drawings were


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prepared with all reasonable skill, care and diligence. It was for lack of such reasoning in RBHs

M&E experts report that the claim was struck out in the first place by HH Judge Seymour QC.

November 2002

coc - royal brompton hospital saga

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