OCTOBER 2010

A company recently failed to persuade the Court of Appeal that ‘without prejudice’ comments made by the company it was in dispute with should be admitted as evidence in court.

Without prejudice material is material which is used in negotiation on the understanding that it will not be referred to in court. The principle allows parties to a dispute to negotiate without having their hands tied by the consideration that everything that passes between them may be given in evidence. Only in rare circumstances is the principle breached.

In this instance, one of the parties to the dispute wanted to disclose the content of discussions ‘as an aid to the proper legal construction of a contract’. However, Longmore LJ considered that it was more important to uphold the principle of without prejudice than to allow its breach so that ‘arguably relevant’ background material was admitted by the court, adding that 'Very few disputes about interpretation are truly informed by evidence about preceding without prejudice oral discussions'.

MARCH 2006

On 21 December 2005, the Court of Appeal gave judgment on the appeal of the Ove Arup & Partners -v- Mirant Asia Pacific Construction case.  One of the key issues confirmed by The Mirant appeal case is that designers cannot rely upon their design assumptions being verified by other parties.  Ove Arup produced its initial design based on certain assumptions as to the bearing capacity for the foundations it was designing.  No detailed ground investigations to verify the initial design assumptions were undertaken, but Ove Arup did not establish whether or not such investigations had taken place.

The appeal judges found that while it is acceptable to work upon initial assumptions, it is up to a designer to make sure the required additional information is acquired to verify those initial assumptions.  The designer does not necessarily have to get the additional information himself, but must ensure that someone does, and must also ensure that the client knows the additional information has to be obtained.

Unless the client has been warned that this information is needed and his design is based upon assumptions only, the designer cannot assume that the client will obtain and evaluate the additional information.  As a result, it would amount to negligence if the designer did not check that the client had arranged for the assumptions to be verified.

FEBRUARY 2006

Ignorance of the legal wording of the Health & Safety at Work Act is leaving consultants vulnerable to criminal conviction for accidents on the jobs they are designing, a leading construction solicitor warned this week.

Many consultants were "totally unaware" that sections 3(1) and 3(2) of the Health & Safety at Work Act (1974) requires them to prove all "reasonably practicable" steps have been taken to protect workers from foreseeable risk. "This reverses the burden of proof from the prosecution to the defendant", he said.

A Consulting Engineer was recently found guilty under section 3(2) of the Act. Consultants face the added difficulty of convincing lay juries that their designs were the best reasonably practicable solution.

Many lay jurors do not understand the different roles and responsibilities of consultants, clients, contractors and sub-contractors. Nor do they understand the processes involved in construction, or that construction is always, to a greater or lesser degree, a risky activity.

The Consultant is the first designer to be successfully prosecuted by the Health & Safety Executive (HSE) under the Health & Safety at Work Act rather than the Construction (Design & Management) Regulations.