SCTSPRINT3

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 81

CA147/14

OPINION OF LORD TYRE

In the cause

MARTIFER UK LIMITED

Pursuer;

against

LEND LEASE CONSTRUCTION (EMEA) LIMITED

Defender:

Pursuer:  Moynihan QC, Broome;  Anderson Strathern LLP

Defender:  Borland QC;  Pinsent Masons LLP

19 June 2015

Introduction
[1]        The SSE Hydro, known during its planning and construction phase as the Scottish National Arena, is now a distinctive feature of the Glasgow cityscape.  Designed by Foster & Partners, the building is elliptical in shape, with an outward sloping external wall and a domed roof supported by diagonally latticed steelwork.  The external wall increases in height towards the rear of the auditorium, with the consequence that the domed roof is set at an angle to the ground.

[2]        The construction of the Hydro has not, unfortunately, been achieved without generating litigation.  The defender in the present action was the main contractor for the construction of the building.  The pursuer was engaged by the defender as sub-contractor for work packages consisting, in general terms, of the structural steelwork, roof steelwork and roof cladding.  The pursuer has made claims for additional payments under the sub‑contract and for extension of time, which claims have been rejected by the defender.  The present action has been raised to obtain a judicial determination of certain specific issues. 

[3]        The first issue is whether the pursuer’s sub‑contract works required to be completed in accordance with, and whether the rights and duties of the parties were regulated by, a work programme constituted by certain documents.  This issue came before me for proof before answer.  Evidence was led by the pursuer from Mr Andrew Bayne, a construction contract programming consultant engaged by the pursuer since about May 2012 to provide advice in connection with their claim against the defender.  On behalf of the defender, evidence was given by Mr Kenneth Stewart, a work package manager employed by the defender since 1998 who participated in discussions and exchanges of emails for the purposes of preparing and finalising the appointment of the pursuer as the primary steelwork sub‑contractor for the project.  I accept the evidence of both witnesses as credible and reliable, subject to the observation that both strayed from time to time into expressing views on matters which are properly for determination by the court.

 

Sequence of construction
[4]        In order to address the parties’ respective contentions, it is necessary to understand the sequence of construction of the building within which the pursuer’s sub‑contract works were to be supplied.  Those sub‑contract works consisted of five elements: main steelwork, bank roof steelwork, main roof steelwork, main roof covering, and lighting gantry.  The main steelwork consisted of the structural steel columns of the main walls.  An important feature of the construction sequence was that the steel columns were not erected from bottom to top at one time, but rather level by level.  Concrete fin walls were poured to a certain level and the pursuer then erected its steel columns to the same level.  After the construction of decking at that level, the sequence of concrete followed by steel columns was repeated to the next level, and so on.  This process was not, however, carried out for the whole building at once.  Instead, the ellipse was divided into 12 sectors, and the level by level sequence that I have already described was carried out sector by sector.  Due to the design of the building, the sectors were of differing heights, and consequently there were large variations in the sizes of the structural steel members.  Within each sector, and at each level, progress with the pursuer’s steelworks depended upon completion of the immediately preceding concrete works, and vice versa.

[5]        The sequence of construction of the main roof steelwork was similarly divided into segments, albeit 16 instead of the 12 external wall sectors.  In the centre of the roof was a circular steelwork structure held temporarily in place by a vertical propping tower.  Each segment of the roof steelwork was built out from the top of the external wall to join the circular central section.  Commencement of construction of each segment of the main roof steelwork was dependent upon completion of construction of the concrete and steelwork of the sector of the external wall from which it was built out.  Once the segments of roof steelwork had been connected to the circular central structure, the central support trestle was removed.

[6]        In the same way, commencement of construction of a segment of roof cladding depended upon completion of construction of that segment of roof steelwork.  Sequencing of the construction of the other two elements falling within the pursuer’s sub-contract, namely bank roof steelwork (which referred to the roof of a low level, grass-covered area located above the auditorium entrances) and the lighting gantry was less critical to the overall programme.

 

Background to the execution of the sub-contract
[7]        The Sub‑Contract Agreement was executed on behalf of the pursuer on or about 18 March 2011 (the copy lodged in court does not bear a date of signature) and on behalf of the defender on 8 June 2011.  Prior to execution there had been much written and oral communication between the parties.  One of the matters discussed was programming.  On 1 March 2011 a meeting was held between the pursuer’s Mr Marcelo Santos, the defender’s senior manager Mr Alister Aitken, and Mr Stewart.  Following that meeting, Mr Stewart drafted an email to be sent, following approval by Mr Aitken, to Mr Santos.  Attached to Mr Stewart’s email was a brief hand-sketched programme for the contract works reflecting what had been agreed at the meeting.  The programme assumed, firstly, a 15‑day drawing approval period (ie the period allowed to the pursuer for approval of a design drawing issued to it by the defender) and, secondly, a start on site on 12 May 2011 with completion of the pursuer’s works on 6 September 2012.

[8]        On 2 March 2011, Mr Stewart emailed Mr Santos stating:

“…We would like to adopt a 5 day drawing approval period for the programme, as such I would like to revert the dates to those detailed on the attached summary.  If we can agree the attached programme, we will incorporate same into the contract documents.”

 

Attached to Mr Stewart’s email was a one page document entitled “Scotland’s National Arena – Summary Steelwork and Roof Cladding” and bearing the programme number SL-UK-800249-MP-1.  This is one of two critical documents for present purposes.  It was based upon the hand‑sketched programme produced by Mr Stewart the day before, with the information from his sketch having been entered in an electronic programming package.  The document contained the following table:

Activity ID

Activity Name

Start

Finish

A1000

Place Order

 

05-Jan-11

A1010

Main Steelwork

29-Apr-11

17-Nov-11

A1020

Bank Roof Steelwork

04-Nov-11

22-Feb-12

A1030

Roof Steelwork

28-Nov-11

11-Apr-12

A1040

Roof Covering

31-Jan-12

28-Aug-12

A1050

Lighting Gantry

12-Apr-12

29-May-12

 

Some of the dates in this table are earlier than those in Mr Stewart’s sketch; Mr Stewart attributed this to the change in the drawing approval period.  I note however that many of the dates have been advanced by more than 10 days; nothing appears to turn on this.  The document also contained a graphic representation of these dates in the form of horizontal bars on a calendar, in effect reproducing Mr Stewart’s sketch in electronic form.  Mr Santos replied by email dated 4 March 2011 stating “Agreed.  Please amend contractual wording accordingly.”

[9]        Certain features of Programme SL-UK-800249-MP-1 may be noted.  It is a high‑level programme consisting only of start and finish dates for the five elements of the sub‑contract works.  It contains no critical path or logic links, and shows little more than that the main steelwork required to be erected before the roof steelwork, which in turn required to be erected before the roof covering.  It contains no recognition of the level by level and sector by sector sequence of construction.

[10]      On 9 March 2011, Mr Stewart sent a series of emails to Mr Santos attaching “the key contract documents” for Mr Santos’s review.  One of the emails contained a “List of Sub‑Contract Documents”.  Within this list, Section 4000 was entitled “Technical”.  One of the “Technical” documents, allocated number 4170, was Programme SL-UK-800249-MP-1, described as “Package Programme” and stated to consist of 1 page.  From now on I shall refer to this one-page document as 4170.  As I have already mentioned, the sub‑contract was signed on behalf of the pursuer on or about 18 March 2011.

[11]      On 31 March 2011, the defender’s Mr Aitken emailed Mr Santos stating:

“The Lend Lease Directors whilst reviewing the above Sub Contract prior to sign off have requested the following pages are amended/included within the Sub-Contract previously signed by Martifer.

 

Can you please arrange for these to be initialled to signify your agreement to their inclusion & return asap.”

 

[12]      Among the documents that the defender wished to have included “within the Sub‑Contract” was a six-page spreadsheet entitled “SNA – Information Release Schedule”.  This is the second of the two critical documents for the purposes of this opinion.  It bears the programme reference “UK-SL-SECC-Del F-7 Draft (Working version)  Rev 04” and appears to have been prepared on 9 December 2010.  I shall refer to this document as “IRS 4”.  Its purpose, as explained by Mr Stewart, was to set out the earliest dates at which the defender as main contractor could expect to receive design information from the employer’s design team.  The schedule set out, in both list and graphic formats, the defender’s programmed start and finish dates for a detailed list of construction activities.  It also contained a design delivery date for each activity. The list of activities gave full recognition to the level by level and sector by sector sequence of construction of the building.  One could, for example, identify the sequence of erection of structural steelwork followed by concrete pouring to a particular level within a particular sector, followed by repetition of the sequence to the next level within that sector.  The schedule covered all of the activities within the defender’s main contract and not merely those within the pursuer’s sub-contract.  The latest finish date in the schedule, applicable to WP (work package) 3600 “Roofing” and WP 3600a “Skylights and Louvres”, is 19 November 2012.

[13]      The documents emailed to Mr Santos by Mr Aitken, including IRS 4, were duly initialled and returned to the defender.  The sub‑contract was subsequently signed on behalf of the defender on 8 June 2011.  On 10 June 2011, the defender gave notice to the pursuer that the commencement date of the sub‑contract works was 23 May 2011, with completion by 24 September 2011.  It will be noted that these commencement and completion dates are respectively 24 and 27 days later than the start and finish dates in 4170, and different also from the earliest start and latest finish dates in IRS 4.

 

The terms of the Sub-Contract Agreement
[14]      The key terms of the Sub-Contract Agreement for present purposes are as follows.

[15]      Article 1.5  provided that:

“The Sub-Contract Works shall be completed in accordance with and the rights and duties of the Contractor and the Sub-Contractor shall be regulated by:

 

1.5.1  The Abstract of Particulars annexed in Part One of the Schedule and signed as relative hereto;

 

1.5.2  The Sub-Contract Conditions as amended by the conditions annexed in Part Two of the Schedule and signed as relative hereto;

 

1.5.3  The Sub-Contract Documents listed in Part Three of the Schedule

 

all of which are held to be incorporated in and form part of the Sub-Contract.”

 

The reference to “the Sub‑Contract Conditions” is to the Sub‑Contract Conditions for use with the GC/Works Sub‑Contract.  Clause 2.1 of the Sub‑Contract Conditions provided that if any conflict appeared between the Sub-Contract Conditions and the Abstract of Particulars, the Abstract of Particulars was to prevail.

[16]      Clause 4.1.1 of the Sub‑Contract Conditions obliged the sub-contractor to execute the Sub‑Contract Works “with diligence”.  Clause 11.1 required the sub‑contractor to “carry out and complete the Sub‑Contract Works in accordance with the details in the Abstract of Particulars but subject to receipt of notice to commence work on Site…”  The Abstract of Particulars provided that the date for commencement of the Sub‑Contract Works would be between 15 April and 27 May 2011, with a contract period of 70 weeks.  (As already noted, the defender gave notice that the commencement date was 23 May 2011.) 

[17]      Clause 11.2.1 required the sub-contractor, within seven days following a request by the contractor, to submit for the contractor’s agreement its proposed programme for carrying out the Sub‑Contract Works.  The contractor’s agreement to the proposed programme did not, however, relieve the sub-contractor of any liability under the sub‑contract.  The sub‑contractor warranted inter alia that its programme would show the sequence in which it proposed to execute the Sub‑Contract Works, that it would be achievable and would conform with the requirements of the sub‑contract, and that it was based on a period or periods corresponding to the period for completion provided in the Abstract of Particulars.  Clause 11.2B.1 further obliged the sub‑contractor to carry out and complete the Sub‑Contract Works so as to enable the contractor and other sub‑contractors to execute their works in the manner planned by the contractor from time to time. 

[18]      The list of Sub‑Contract Documents at Part Three of the Schedule included the entry “4170 Package Programme 1 page”.  The document to which I have referred as 4170 appeared within the Sub‑Contract Documents at page 000227 of the sub‑contract.  The document to which I have referred as IRS 4 appeared within the Sub‑Contract Documents at pages 000228a to 000228g. 

[19]      The list of Sub‑Contract Documents also included, under the heading “Financial”, the following entry “3300 General Preliminaries 1 to 58 inc”.  Paragraph A32/290 of the Preliminaries provided:

“The programme of Works incorporated into the Subcontract shall be the selected Subcontractor’s tender programme agreed with the Contractor prior to appointment…

 

The Subcontractor is to carry out the Subcontract Works diligently and in such order, manner and time as the Contractor may reasonably direct so as to ensure completion of the Works or any portion thereof by the completion date or dates or such extended date or dates as may be allowed under the Subcontract.”

 

The issue
[20]      The pursuer seeks declarator that, in terms of the sub-contract, the Sub‑Contract Works required to be completed in accordance with, and the rights and duties of the parties were regulated by, “the programme at pages 000228a to 000228g of Sub‑Contract Document 4170 (Programme)”, subject to the substitution of a finish date of 28 August 2012 for activity WP3400 Roofing on page 000228f in place of the stated finish date of 19 November 2012 (including, for the avoidance of doubt, the sequencing of work therein) as altered by the direction of the defender from time to time, subject to the parties’ other rights and obligations under the sub-contract.

[21]      Certain explanations are necessary in order to understand what the pursuer is seeking.  Firstly, it will be noted that in this conclusion, the pursuer (in contrast to the defender) refers to Sub‑Contract Document 4170 as comprising both what I have thus far referred to as 4170 and what I have referred to as IRS 4.  What the pursuer effectively seeks is declarator that document IRS 4 provided the programme for the sub-contract, subject to the substitution of a finish date of 28 August 2012 for the finish date of 19 November 2012 which appears at WP3600 (Roofing) in IRS 4.  (The reference in the conclusion to WP3400 appears to be an error; there is no WP3400 in IRS 4.)  The date 28 August 2012 is derived from the one-page document to which I have referred as 4170, in which (as appears from the table set out at paragraph [8] above) it is the finish date for construction of the roof covering.  In this opinion I have attributed the reference 4170 only to the single-page high level document derived from Mr Stewart’s sketch, and to refer to pages 000228a to 000228g as IRS 4, because this reflects their emanation from different sources.  By so doing I do not pre-judge the disputed issue of which pages were or were not “Sub‑Contract Documents”.

 

Argument for the pursuer
[22]      The submission by senior counsel for the pursuer focused upon the critical requirement in the design of the building that the construction work be carried out in accordance with a level by level and sector by sector sequence.  That sequence formed the basis not only of the pursuer’s sub‑contract works but also the work packages of other sub‑contractors.  The only document within the Sub‑Contract Documents conveying this critical requirement was IRS 4.  Without it, there would have been no contract programme.  It was clear from the evidence that something had been regulating the sequence of the pursuer’s works even at a very early stage: construction began on 23 May 2011, which was not only before execution by the defender of the sub‑contract but also before the defender gave notice of the sub‑contract commencement date.  Whilst it was accepted that there was a hierarchy of documents within the sub-contract, nothing taking precedence over IRS 4 conflicted with it as a statement of the contract programme.  The Abstract of Particulars specified a contract period of 70 weeks, which was consistent with 4170, but neither the Abstract nor 4170 contained any detail of the construction sequence.  It was acknowledged that there was an apparent inconsistency between, on the one hand, the Abstract and 4170 which specified a contract period of 70 weeks and, on the other hand, IRS 4 which had a total duration of 82 weeks.  The explanation for this was that IRS 4 included programming of roofing works other than those for which the pursuer was responsible.  The solution to the apparent inconsistency was to substitute the finish date contained in 4170, ie 28 August 2012.  In fact, because the sub-contract commencement date was 23 May 2011 and not 29 April 2011 as envisaged in 4170, the whole programme contained in IRS 4 required to be moved back by about 25 days, keeping the level by level and sector by sector sequence of works exactly the same (subject only to some adjustment to accommodate the intervention of a Christmas shutdown) but producing a finish date of 24 September 2012.  What mattered most was the sequential method imposed by inclusion of IRS 4 among the Sub‑Contract Documents.  The description of 4170 in the list of Sub‑Contract Documents as consisting of one page was simply a clerical error which should be disregarded.

[23]      In support of this argument, reference was made to Yorkshire Water Authority v Sir Alfred McAlpine & Son (Northern) Ltd (1985) 32 BLR 114, a decision of Skinner J in the Queen’s Bench Division Commercial Court cited with approval by the Court of Appeal in Holland Dredging (UK) Ltd v Dredging & Construction Co Ltd (1987) 14 ConLR 30.  The present case was on all fours with Yorkshire Water in respect that a method statement was incorporated into the contract, imposing an obligation upon the contractor to follow the specified sequence.  In the present case, submission by the sub-contractor of a programme in pursuance of its obligation under clause 11.2 (see paragraph [17] above) did not affect the parties’ agreement that the sub-contract would be carried out in accordance with the timetable in IRS 4: the pursuer’s clause 11.2 programme was not a contract document.  It was noteworthy that as early as 7 March 2011, the defender had rejected drawings submitted by the pursuer, requiring them to be re‑submitted “in line with agreed contract programme” – a reference to 4170.  As events moved on, the same contractual significance fell to be attributed to IRS 4.

 

Argument for the defender
[24]      On behalf of the defender it was submitted that there was no contractual programme consisting of 4170 and IRS 4.  No such provision was contained in the sub‑contract and, indeed, IRS 4 was nowhere mentioned in the sub‑contract.  The contractual requirement, in clause 4.1.1, was to execute the Sub‑Contract Works “with diligence”.  If there was any conflict between the Sub‑Contract Conditions and the Sub‑Contract Documents, the former prevailed (clause 2.1). In terms of clause 11.1, the pursuer’s obligation was to carry out and complete the works in accordance with the details in the Abstract of Particulars but subject to receipt of notice to commence work on Site; there was no reference to a contractual programme.  It was unlikely that the parties would have bound themselves to complete the works in accordance with 4170 and IRS 4 as any departure from timetable would put one or other or both in breach of contract.  Moreover, the contractual commencement and completion dates, produced by the operation of clause 11.1, the commencement notice and the 70-week period in the Abstract, were inconsistent with both 4170 and IRS 4.  By attempting to substitute a different completion date for the date shown in IRS 4 (19 November 2012), the pursuer was attempting to reconfigure a critical date in the document upon which it relied.  That would amount to rewriting the contract.  There was nothing in the Sub‑Contract Agreement to indicate how all of the other dates in the documents relied on by the pursuer were to be regarded contractually once the start and finish dates therein could no longer apply. 

[25]      The pursuer’s case was at odds with other contractual provisions.  The fact that the Abstract provided for a range of potential commencement dates suggested that any start date in either 4170 or IRS 4 was not intended to be contractually binding.  The pursuer’s position was inconsistent with clause 11.2B.1 of the Sub‑Contract Conditions which required the pursuer to compete its works so as to enable the defender to execute its works in the manner planned by the defender “from time to time”, ie introducing an element of flexibility into the timetable.  It was also at odds with paragraph A32/290 of the Preliminaries which contained no suggestion that the Sub‑Contract Works were to be carried out in accordance with any particular programme, but rather required them to be carried out in accordance with the defender’s reasonable direction so as to ensure completion by the completion date (or any extended date).  There were material inconsistences as between 4170 and IRS 4.  Those extended beyond the start and finish dates and included many elements of sequencing.  A number of critical elements in the pursuer’s works, such as installation of roof segments, installation of infill steel, de‑jacking of the roof , and erection and dismantling of the central support trestle, did not feature in IRS 4 at all.  This afforded a further indication that IRS 4 had not been intended to be contractually binding.

[26]      Examination of the surrounding circumstances demonstrated that IRS 4 was not developed for the pursuer’s works, nor in conjunction with 4170.  The purpose of IRS 4 was to indicate when design information for various detailed work packages might at the earliest be released by the employer’s design team to the defender.  In the context of the sub‑contract, it showed no more than the earliest possible dates when design information might be released by the defender to the pursuer.  4170 was merely a high level, basic, indicative programme.  A reasonable person would not consider that either or both of these documents was or were contractually binding; such a person would conclude rather that they were included among the Sub‑Contract Documents to affirm the level by level, sector by sector approach that was to be adopted.  The fact that the pursuer was obliged in terms of clause 11.2 to produce (and did produce) a detailed construction programme, which it warranted inter alia to show the proposed sequence of execution of the Sub‑Contract Works including critical paths etc, demonstrated that the programme in 4170 and IRS 4 was not intended to be contractually binding.  There were material inconsistencies between 4170 and IRS 4 on the one hand and the pursuer’s programme on the other.

 

Decision
Is IRS 4 a Sub‑Contract Document?

[27]      I have described the separate origins of the one-page document 4170 and the multi‑page spreadsheet IRS 4.  The first issue between the parties that must be resolved is whether IRS 4 is a Sub‑Contract Document at all.  The defender contends that the reference to 4170 in the list of Sub‑Contract Documents as a one-page document, together with the absence of any reference in 4170 itself to IRS 4, makes clear that the seven pages of IRS 4, numbered 000228a to 000228g in the Sub‑Contract Agreement, do not form part of the Sub‑Contract Documents.  I have little difficulty in rejecting that contention.  I have noted above how IRS 4 came to be included within the Sub‑Contract Documents after the sub‑contract had been signed on behalf of the pursuer.  That late addition is reflected in the numbering of the seven pages using suffixes a to g.  In my opinion the reference to “1 page” in the list of Sub‑Contract Documents suggests nothing more than a clerical omission to pick up the fact that documents had been added to what had previously been the single page of 4170.  Whether it is proper thereafter to describe the seven pages of IRS 4 as being pages of 4170 does not seem to me to be a matter of any importance.  The pages have been initialled on behalf of the pursuer and were included within the documents annexed to the sub‑contract as Sub‑Contract Documents at the time when it was executed on behalf of the defender.  These pages are clearly, in my view, Sub-Contract Documents.

 

Did the parties agree a contractually binding programme consisting of 4170 and IRS 4?
[28]      In addressing this question, a useful starting point is the following passage from Chitty, Contracts (31st ed, 2012), vol 2, para 37-071:

“Depending upon a true construction of the contract as a whole, certain documents may be intended not to bind the parties to their literal terms, but to have more limited effect.  Thus, a programme setting out the contractor’s intended sequence of work, even though the contract may require its provision, will generally not constitute a contract document.  Were it to bind the parties literally, the inevitable failure of one or both parties to comply in every respect would render one or both parties in breach.  Where programmes are to be referred to in the contract documents, the obligation will generally be to produce and review a sequence of working, but not to comply with each detail.  Where important stages of the work are to be completed by particular dates, sectional completion may be provided for.  There will be other documents which are supplied to the contractor by the employer (or a member of the professional team) which form part of the background information available to the contractor at tender and which may be of critical importance in relation to particular types of claims that may be made by the contractor…”

 

The present case is not, of course, concerned with the programme that the pursuer was required by clause 11.2 of the sub‑contract to provide; nor were the documents with which this case is concerned supplied to the pursuer at tender.  Nevertheless the passage quoted is relevant to those documents, and affords an explanation of what is meant in article 1.5 of the Sub‑Contract Agreement by the statement that the rights and duties of the parties were to be “regulated” by, inter alia, the Sub‑Contract Documents.  On a proper construction of the contract as a whole, against the background of the circumstances of which the parties may reasonably be taken to have been aware at the time of entering into the sub‑contract, documents of this kind may (as in Yorkshire Water) or may not impose a contractual obligation not merely to complete the works by the specified finish date but also to carry them out in accordance with the intermediate dates set out in the programme.  An alternative analysis is that the documents contain critical information whose availability to both parties, at the time of contracting, the employer (or, in this case, the main contractor) wishes to record.  To that end, documents containing the information are included within the contract documents but without any common intention that they themselves create any rights or obligations on either side.  

[29]      In my opinion, inclusion of documents 4170 and IRS 4 within the Sub‑Contract Documents by which the sub‑contract was “regulated” in terms of article 1.5 did not have the effect of imposing on the parties an obligation to complete the Sub‑Contract Works in accordance with the programme contained in IRS 4, whether with or without the adjustments specified by the pursuer in its conclusion for declarator.  My reasons are as follows.

[30]      Firstly, and in my opinion most importantly, IRS 4 was not, in its terms, a programme for the pursuer’s sub‑contract.  It was, as it clearly stated, an information release schedule drawn up in the context of the main contract.  Its purpose was to advise the defender of the earliest date at which it might expect to receive design information on various items of construction information from the employer’s design team.  As a document prepared for the purposes of the main contract, its relevance to the pursuer’s sub‑contract was indirect.  Most of the items in the spreadsheet related to works falling outwith that sub‑contract.  It omitted, as was pointed out in the defender’s submissions, various critical aspects of the pursuer’s works such as erection and dismantling of the central support trestle, which would have required programming but which, presumably, required no design input from the employer’s professional team.  In my opinion these are significant omissions.  I was not persuaded by Mr Bayne’s dismissal of them, in oral evidence, as temporary works or one-day jobs which did not require to appear in a programme.  Some of them are clearly substantial works and it comes as no surprise to see them detailed in the programme produced by the pursuer in terms of clause 11.2, to which I refer below.

[31]      In the second place, the start and finish dates in 4170 and IRS 4 were mutually inconsistent and, equally importantly, inconsistent with both the date specified in the defender’s commencement notice and the completion date produced by adding the 70-week contract period to the commencement date.  In my view this decoupling of the contractual start and finish from the various dates mentioned in 4170 and IRS 4 creates formidable difficulties for the pursuer.  It necessitates the adoption of what was referred to by senior counsel for the pursuer as a “floating” contract period, containing a highly detailed programme which becomes anchored only by the defender’s specification of the commencement date.  The problem for the pursuer is that there is nothing in the terms of the sub‑contract to support such an approach.  Instead, the sub‑contract imposed obligations of a broader nature, e.g. to execute the contract works with diligence, and to enable the contractor and other sub‑contractors to execute their works in the manner planned by the contractor from time to time.  As the editors of Chitty observed, it would be unusual for parties to a contract to tie themselves into an arrangement whereby any departure from programme constituted a breach of contract by one or both.

[32]      The pursuer’s argument was dependent upon the assertion that to construe the sub‑contract in the manner contended for by the defender would be to leave it lacking any structure:  an unacceptable result for a project of extraordinary complexity that was dependent upon execution of the works in a carefully planned sequence.  I do not agree that the defender’s construction would have this effect.  Inclusion of IRS 4 within the Sub‑Contract Documents had the effect of bringing to the forefront of the parties’ attention the need for the Sub‑Contract Works to be executed in accordance with the level by level, sector by sector sequence set out in the main contract programme, but without imposing the detailed programme as a contractual requirement.  This accords with Mr Bayne’s description of IRS 4, in the course of his oral evidence, as a reasonably detailed depiction of the erection of the main structure, the erection of the roof works, and the key structural elements.  IRS 4 might be expected to have informed the terms of the programme that the pursuer was bound to submit in terms of clause 11.2.  The pursuer’s programme, of which a revision with the date 13 June 2011 was lodged as a production, did indeed follow the level by level, sector by sector sequence found in IRS 4, with the inclusion, however, of items such as erection and dismantling of the central support tower.  Although the pursuer’s programme was clearly not a Sub‑Contract Document, the warranties granted in respect of it conferred rights upon the defender in the event that, for example, it failed to conform with the requirements of the sub‑contract.  By this means, the sequence of construction was clear to all concerned, without the undesirable – and indeed uncommercial – consequences that might have flowed from making every detail of the programme a contractual requirement.  This analysis also avoids the difficulties that would arise if one had to reconcile the material differences between the programme in IRS 4 on the one hand and the pursuer’s clause 11.2 programme on the other, on the hypothesis that both gave rise to contractual entitlements on the part of the defender.

[33]      The absence of connection between, on the one hand, the programme that was used in IRS 4 as the basis of the information release schedule and, on the other hand, the contractual obligations imposed upon the pursuer, is illustrated by two particular features of the declarator sought by the pursuer.  The first of these is the need, in order to accommodate the pursuer’s argument, to move every date in IRS 4 back by about 25 days to take account of the fact that the contractual start date was not specified until many months after production of IRS 4 and did not coincide with the start date used in IRS 4.  In order to make this work, a degree of interference with the timetable was necessary to account, for example, for the Christmas shutdown occurring at a different time in the programme.  Mr Bayne described this re‑scheduling as straightforward, but it strikes me as symptomatic of the artificiality of the exercise conducted by the pursuer to establish IRS 4 as a contractually binding timetable.  The same criticism may be made of the second feature, namely the need to substitute a finish date of 28 August 2012 for the stated finish date of 19 November 2012 in IRS 4.  Such a substitution is rendered necessary for the pursuer’s argument by the need to fit the programme into the 70-week contract period specified in the Abstract of Particulars, and the date 28 August 2012, which appeared in 4170, was in this sole instance preferred to the date appearing in IRS 4.  Again I regard this as a somewhat contrived attempt to make IRS 4 (as adjusted) do a job for which it was not intended by the parties at the time when the sub-contract was entered into.  Nor, ultimately, is it the pursuer’s position that 28 August 2012 was the contractual completion date: such a proposition would not have been consistent with a contract period of 70 weeks from 23 May 2011.  It is true that the period of time between the start date of 29 April 2011 in 4170 and the contractual start date of 23 May 2011 is roughly equal to the period between 28 August and 24 September 2012, but there remain a few days’ discrepancy and cast further doubt upon the legitimacy of using 4071 for this particular, isolated purpose.

[34]      For these reasons, I accept the defender’s submission that a reasonable person with the background knowledge available to the parties at the time of entering into the sub‑contract would not conclude that the parties intended 4170 and IRS 4 to be contractually binding in the manner contended for by the pursuer, but rather would conclude that IRS 4 was included within the Sub‑Contract documents simply to affirm the level by level, sector by sector approach that was to be adopted on the project by, among others, the pursuer as steelwork sub-contractor.

 

Disposal
[35]      The defender moved me to repel the pursuer’s third and fourth pleas-in-law, which are the substantive pleas relative to the matters canvassed in this opinion, and to assoilzie the defender in respect of conclusion 1.1 in the adjusted summons.  This seems to me to be the appropriate disposal; however before pronouncing an interlocutor I shall put the case out By Order to be addressed on the terms of my order, on expenses and any other matters arising from my opinion, and on further procedure.