Why Do Construction Projects Crumble at Court?
Bob Swayne has had extensive experience in the building engineering services field for many years, having worked with a number of engineering services consultancies, major UK contractors and PFI consortia, before setting up The Hampden Consultancy in 1993. He speaks with Lawyer Monthly about the issues he faces with the legal profession as an Expert Witness and why construction projects can fall into Court.
Throughout your years of experience as an expert, what common mistakes do clients make when undergoing construction work, which thus has the potential to lead to lawsuits?
From my own experience, a common mistake many clients make is in overlooking the importance of mechanical & electrical engineering services (M&E), relying on either the main contractor or his sub-contractor to undertake the design or even expect unqualified professionals like architects or surveyors to deal with the matter (and which is often outside their particular area of expertise).
Considering that many buildings (including some larger residential properties) are far more complex now than they ever were in respect to things such as heating, ventilation, air-conditioning, heat pumps, solar panels, intelligent lighting, building management systems, bio-mass boilers, etc, it is imperative in my view that clients employ appropriate professionals (even if it means additional professional fees at the outset) because it will ultimately save clients’ money in the longer term.
There are other aspects to consider such as an imperfect brief provided by clients or their project team, inadequate design, poor installation, defective testing & commissioning, the absence of appropriate operation & maintenance documentation, poor maintenance or even a lack of maintenance post-contract!
The main problem seems to be that a lot of clients are not willing to pay fees for building services engineers who can correctly design M&E systems, prepare specifications and provide on-site monitoring of installations to ensure they are undertaken correctly. Employing the right people at the right time always makes good economic sense, never more so than in terms of construction projects. Failure to do so means in my experience that you will expend a lot of money unnecessarily trying to put things right post-contract, monies spent in litigation and expert witness fees that would have been better spent employing appropriate professional expertise at the beginning of a project.
How can clients ensure that they have hired the right person at the outset of a project?
There are a number of professional bodies such as the Chartered Institute of Building Service Engineers (CIBSE), the Association of Consultancy & Engineering (ACE), the Building Services Research & Information Association (BSRIA), the Institution of Engineering & Technology (IET) and if you are dealing with healthcare projects you can also contact The Institute of Healthcare Engineering & Estate Management (IHEEM), all such bodies having lists of experienced people.
It would also be sensible in my view to establish whether the people you have chosen are experienced in dealing with similar projects to that you are proposing to build or refurbish.
When it comes to finding M&E consulting engineers who will act as expert witnesses then the best places to find them is to contact organisations such as the UK Register of Expert Witnesses, the Academy of Experts, the Expert Witness Institute or the National Expert Witness Agency (NEWA) as well as checking any of the legal website online directories, including of course Lawyer Monthly.
You say that buildings are more complex than ever before, can you explain in what way?
There is greater emphasis on energy conservation and the implementation of energy-saving methodology, which requires greater attention to detail in terms of design and specification, particularly in respect to integrated data systems and ‘intelligent’ controls. M&E services are becoming more complex, it is not simply a matter of wiring up a power circuit or connecting up a radiator anymore – clients are now installing air-conditioning, heat pumps, solar panels, bio-mass boilers, ‘intelligent’ controls, building management systems and ‘intelligent’ lighting systems. These are all things which are highly technical to design, install and commission.
All these complex systems were never considered 30 or 40 years ago. When designed, installed or commissioned incorrectly they can cause problems, rather than making life easier which these new components are supposed to do. For instance, currently I am seeing a significant level of complaints regarding heat pumps that are not allegedly saving energy. I believe there are several reasons for this situation namely badly-designed systems, inappropriate applications, poor installations by unqualified or untrained contractors and/or failure to commission systems properly, leading to a situation whereby clients are being led to believe that savings can be made which are actually unachievable. When these savings are not achieved then clients naturally seek redress through the Courts.
How do you have to handle cases in arbitration hearings differently to the Courts?
From my perspective, I treat them all the same, as the requirements for the expert report remain identical and require you to comply with the Civil Procedure Rules. I personally don’t handle the cases any differently. I still apply the same attention to detail and endeavour to identify and explain the technical issues clearly so that the arbitrator can understand and reach a satisfactory judgement, hopefully in favour of my client.
What general difficulties do you face as an Expert Witness?
Apart from the common one of late payment of fees by solicitors, other difficulties I face include problems of solicitors issuing general instructions such as “find out what is wrong with the heating system” and then expect a quick answer when in fact the underlying problems may be more complex. For example, underfloor heating systems will often require a thermographic survey to be undertaken if only to establish functionality, namely that the heating circuits are in the right places and are in fact working. This obviously takes time and costs money and which many clients seem to think this is a luxury but expert witnesses are not blessed with X-ray vision and so thermographic surveys are a necessity.
Frequently, the paucity of specific information within Operation & Maintenance manuals or indeed a complete lack of the manuals altogether makes my work very difficult. Some manuals contain nothing more than sales brochures, with no design criteria or detailed description of how individual systems are meant to be operated and more importantly controlled.
Out of the areas: design, specification, supervision and/or project management of mechanical & electrical engineering services installations, which are more prone to complications that can lead to litigation?
They are all prone to complications, you cannot purely say it is design or specification or project management. They all have problems and as I said earlier, if you hire the right people the possibility of these problems, although not necessarily eradicated are nonetheless significantly reduced. If you don’t have the right people, the problem becomes worse as the contract progresses. If you haven’t clearly stated what you want in the brief, then miscommunication leads to faults throughout the contract.
Following on from this, you can often get situations where the contractor has completed the project having installed and commissioned it. However, the next stage is getting the Operation & Maintenance manuals handed over at Practical Completion and if they are not or they are incomplete then when a problem arises there will be difficulties in fixing the problem if it becomes faulty.
Another problem I find is that many of the same mistakes are occurring time and again on nearly every project I deal with. It would seem to me to indicate that lessons are never learnt by clients and/or contractors. Currently the main issues concern underfloor heating, heat pumps, bio-mass boilers, controls systems, mechanical ventilation (particularly in respect to dealing with solar heat gain) and thermal insulation within building structures. Allied to this is the seeming lack of knowledge as to regulations and relevant standards or in some cases the blatant disregard for such regulation and relevant standards.
How much have you witnessed the world of engineering and construction change over the years of your career? Has this affected the legal profession and legal cases?
When I started work as a trainee engineer in the mid-1960’s two-pipe pumped central heating systems were just starting to be installed and controls usually consisted of a time clock and a room thermostat, possibly even a programmer. Now we are in an era where we have building management systems, renewable energy systems, heat pumps, bio-mass boilers, solar panels and intelligent lighting systems, integrated data communications systems which have greatly enhanced the M&E engineering services sector. There is also a greater understanding and consequent expectation as regards energy-saving and conservation.
The problem in relation to the legal sector is due to advancement in technology. Members of the legal profession think it is still an easy question to ask M&E experts to identify a problem; but the answers are now more complex than they used to be. Whilst the legal profession often wants a simple ‘yes or no’ response to a technical issue, there are often grey areas, where there is no straightforward answer.
A lot of times I am finding that problems are due to the fact there is no single answer. As the saying goes you can give the same problem to five different engineers and get five different solutions that could all work, although admittedly some better than others. With the advancement of technology, it has become somewhat more difficult to present a straightforward response. As mentioned previously, client expectations are higher and costs for these new advancements are higher too, which leads in my experience to clients seeking recourse to litigation a lot earlier these days when something goes wrong or does not perform as expected.
What is your aim as an Expert Witness?
As an Expert Witness and/or expert adviser my aim is to explain the technical issues in the simplest possible terms to my clients and ultimately to the Court. By doing so I can hopefully get the parties to a dispute to mediate rather than to seek recourse to litigation in the Court. In a number of cases I have in fact managed to help my clients avoid going to Court as my reports have enabled the other parties to understand and consequently agree with my opinion.
One case of which I am particularly proud involved my client being the 3rd Defendant in a multi-million pound claim. They were faced with a huge claim, together with the potential of horrendous legal costs as well. I was asked by the instructing solicitor to determine whether our client was in any way liable. On the face of it the case did not look good for my client. However, after an extensive review of court documents, contract documentation, contemporaneous correspondence, relevant regulations and standards, I was able to determine that my client had in my opinion no liability whatsoever and this was later accepted by all parties in a mediation held shortly afterwards, my client being removed from the list of defendants. That to me was a good result for an expert witness to achieve.
Are there any other concerns you have as an Expert?
Firstly, of all the methods of alternative dispute resolution (ADR) I do not believe adjudication is an appropriate method for many complex, technical issues, mainly because it has a tight timeline of 28 days, although in reality often no more than 14 days for the expert to review and understand the issues and to prepare a report. I know some people involved in the ADR process may disagree, but in my experience working on cases that are not straightforward, there are often technical issues which are hard to review in such a short space of time.
Secondly, the quality of some instructions received concerns me. I sometimes get instructions which aren’t necessarily appropriate, to which I have to liaise with the particular solicitor to gain clarity. The consequences of a brief instruction can also have a big impact. It is not simply a matter of “find out what is wrong” and in my experience Courts like precise instructions to be issued wherever possible. In such cases it often takes a considerable amount of time and may even require independent tests to be carried out, which can add significant cost to the process. Similarly, the lack of ‘As Installed’ drawings or even appropriate Operation & Maintenance documentation may lead to the requirement for in-depth surveys to be undertaken in order to ascertain precisely what engineering services are installed and indeed where they are located before one can determine what is wrong.
Finally, I see a lot of lower value claims that involve technical issues now being referred to the small claims court, where both costs and time are limited. As a consequence I fear many such claims are unable to afford (both in terms of time and money) the services of an expert witness and thus the claimants miss out on having an expert to explain the technical issues, relying instead on the acumen of their legal representatives to state their case.
In one particular case I was instructed by the Court concerned as a single joint expert to review the equivalent of 5 lever arch files, undertake a site inspection on the South Coast and to then prepare a detailed expert report within a time allocation of 4 hours (albeit based upon a notional sum of money). Luckily I managed to convince the Court that the time allocation and thus the fees were insufficient on this occasion and eventually I was granted 4 days (including 1 day on site for my inspection) to prepare and submit my report. In this particular instance I provided technical evidence that raised doubts about the Claimant’s original statements and led to the case being dismissed.
Bob Swayne, Eng. Tech., AMIHEEM
Managing Director
The Hampden Consultancy
Tel: 01494868868
Mobile: 07768497005
Website: www.thehampdenconsultancy.com
Bob is a member of the UK Register of Expert Witnesses. Before setting up The Hampden Consultancy, Bob Swayne spent 3 years with Laing Management where he was employed as a senior building services design co-ordination manager responsible for overseeing the installation and commissioning of M&E engineering services at the Chelsea & Westminster Hospital. Throughout his professional career working for various engineering services consultancies, major contractors and PFI consortia he has been involved in the design, specification, supervision and/or project management of mechanical & electrical engineering services installations on a wide range of projects, located both in the UK and overseas. These projects have included hospitals, airport terminal buildings, royal palaces, banking & commercial buildings, government laboratories, hotel & leisure facilities, military facilities and the renovation of ‘listed’ buildings.
The Hampden Consultancy, established in 1993, is the trading name of THC Consulting Engineers Limited and specialises in assisting clients in resolving technical and contractual problems with respect to mechanical & electrical engineering services that can (and often do!) occur on many construction projects, whether during the pre-contract or construction phases, or indeed post-contract.
