The UK's Technology and Construction Court (TCC) has recently rejected an application for early specific disclosure, reminding the industry that broad requests for fundamental project documents are not the purpose of the regime.
In Balfour Beatty Regional Construction Limited (formerly Mansell Construction Services Limited) v Broadway Malyan Limited [2022] EWHC 2022 (TCC), the TCC was asked to consider an application for early specific disclosure, in which a party sought copies of a wide range of documents before the Pre-Action Protocol for Engineering and Construction Disputes had been followed. The judge refused the application.
The dispute concerned the development of a six-storey complex comprising student accommodation and commercial units known as the Hive in Bethnal Green, east London. The Hive is owned by Hive Bethnal Green Limited (HGBL), having been built pursuant to a design and build contract.
Broadway Malyan was appointed as architect. The appointment was transferred to the contractor, which was later acquired by Balfour Beatty.
Following practical completion, HGBL brought a claim against Balfour Beatty for defects related to fire safety. Balfour Beatty subsequently sought to pass responsibility for some of the alleged issues to Broadway Malyan.
Not having first-hand knowledge of or access to the project documents, Balfour Beatty requested an extensive list of documentation from the architect, including:
drawings
designs
specifications
the original appointment
site inspection records
the fire strategy report.
Broadway Malyan refused the request.
Balfour Beatty applied to the court seeking an order for early specific disclosure of these documents.
The application was made on a number of grounds, namely:
paragraph 31.12 of CPR Practice Direction 51U
the contractual or proprietorial right to the documents
arguments of principal and agent – essentially saying that the architect, as Balfour Beatty's agent, had duties to provide the documents
RIBA Code of Professional Conduct, principle 2, paragraph 5.3
statutory remedy of delivery, under section 3 of the Torts (Interference with Goods) Act 1977.
The court was mindful of earlier decisions, including Bullring Limited Partnership v Laing O'Rourke Midlands Limited [2016] EWHC 3092 (TCC), where Mr Justice Coulson explained that when considering an application for early disclosure, the question is one of 'proportionality and the justice of the individual circumstances of the case'.
It was Balfour Beatty's argument that the request for early disclosure was both proportionate and in accordance with the overriding objective of the CPRs, as without the documents the company could not properly particularise its claim against Broadway Malyan. Counsel for Balfour Beatty submitted that the documents were necessary for Balfour Beatty to ascertain whether its claim was in fact worthwhile, and if so, to get it right first time.
Mrs Justice Jefford heard the application, and noted that there was an obvious attraction to this submission. But she also noted that many parties would rely on similar arguments for the sake of obtaining documents to achieve greater clarity on the merits of their claims.
The judge refused Balfour Beatty's application, holding that its need for these broad categories of documents to build its case against the potential defendant is contrary to the purpose of the disclosure regime.
She also noted that it is far from unusual for a party to have to plead its case without all the documents being in its control, particularly where claims are made many years after practical completion.
Significantly, the court reaffirmed the purpose of the protocol, which is to enable the parties to understand the issues between them before proceedings commence. It decided that 'it would rarely make sense for pre-action disclosure to be ordered before that pre-action process had been embarked upon'.
'It is far from unusual for a party to have to plead its case without all the documents being in its control'
Given the court's reluctance to shift the burden of gathering the key project documents on to a prospective defendant, parties involved in construction projects would do well to get their own house in order, and follow rigorous document collation and record-keeping practices.
Post-Grenfell and with the introduction of the Building Safety Act 2022, there has been a lot written about the 'golden thread' of project documents. The records sought by Balfour Beatty in this case (see above) should all have been kept and readily available to the main contractor. As well as these records, which would have helped to show what was built and whether the works were defective, very often disputes in the industry revolve around why the project was late and why it was over-budget.
The key documents that should be routinely collected and preserved to give evidence of or defend against a delay claim include:
progress updates, reports and marked-up drawings
sequence of works and amended programmes
site diaries
photographs, ideally dated and annotated
meeting minutes, ideally signed and agreed between the parties.
This documentation should together help you to show how the delay occurred, any mitigation measures taken and exactly what work was done and when.
The key documents that should be routinely collected and preserved to evidence the entitlement to money include:
invoices and payment receipts
daily record sheets and day worksheets that are properly and accurately completed
time sheets and electronic clocking-in records
labour allocation sheets
test and inspection records
delivery records
plant hire records.
Consistent record-keeping is imperative, as the absence of a record may suggest to a court that the event was either insignificant or simply did not take place.
As ever, the best records and those that hold most sway are generally those that document the events objectively as they occur.
David Greenwood is a senior associate at Pinsent Masons
Contact David: Email
Naveed Hanif is a solicitor at Pinsent Masons
Contact Naveed: Email
Related competencies include: Conflict avoidance, management and dispute resolution procedures, Contract administration, Inspection
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