Carlo Taczalski successful in obtaining declarations that City Tower Unit Trust was entitled to terminate Briggs & Forrester’s contract for repudiatory breach
In the latest stage of a long-running dispute between the trustees of the City Tower Unit Trust (the “Trust”) and Briggs & Forrester Engineering Services Limited (“Briggs”), Carlo Taczalski has successfully obtained declarations that Briggs repudiatorily breached its contract by walking off site and purporting to terminate its contract under the contractual termination provisions of a heavily amended JCT D&B Contract.
The contract was for the design and installation of a new staircore pressurisation system to a skyscraper called City Tower, and the removal of the previous system; it required the removal of such asbestos containing material, and other ancillary work (including asbestos surveys), as was necessary to complete the installation. Briggs asserted that much of the work which it was required to undertake was outside of its scope, and left site asserting that the Trust’s refusal to instruct some of this work (specifically asbestos surveys, and the provision of structural support to certain floors) as additional work under the variation provisions, or to otherwise have it carried out by others, amounted to acts of prevention.
This argument was roundly rejected by HHJ Stephen Davies, sitting as a Judge of the High Court.
The Judgement can be found here. It contains useful analysis and explanations of a number of issues including: 1) as to the admissible extent of the factual matrix, and the degree to which a Court is likely to have regard to negotiations between the parties in interpreting a contract; and 2) the interpretation and application of the doctrine of prevention in the context of the application of the termination provisions of a JCT 2016 standard form.
The Judgment also contains very useful analysis in rejecting Briggs’ novel (and misguided) argument to the effect that the Control of Asbestos Regulations 2012 affect the ability of a duty holder to contract on a design and build basis for works which necessarily involve the removal of some asbestos.
The case is also notable as an example of a case where the Trust was able to make good use of the Shorter Trials Scheme to obtain judgment on this key issue of liability very quickly – within a year of issuing proceedings – by only claiming declarations as to liability in the first instance, and expressly leaving quantum and all further issues over to later proceedings.
The dispute will now proceed to its next stage, which will involve quantifying the loss which the Trust has suffered by reason of Briggs’ repudiatory breach of contract, which is likely to be significant given that Briggs left site at a time when even its design was incomplete.
Carlo was instructed by Stephenson Harwood LLP – Charlotte Heywood, Caoimhe Cox, Richard Wilkinson, Francesca Bunn and Freya Cumpsty.
