Royal Brompton Hospital National Health Service Trust v Hammond & Ors

When assessing an extension of time under a construction contract, a certifier must distinguish negligence from mere error in estimating delay. The certifier must estimate the likely date of final completion without the relevant event, then determine whether and to what extent that event delayed completion. Concurrent or overlapping causes require an overall assessment of their effect on the final completion date, rather than simple arithmetic. The same approach applies after completion, when the actual completion date is known. Permission to appeal may be refused where the proposed grounds have no realistic prospect of success or would require substantial re-opening of evidence and reconsideration of unchallenged findings in a disproportionate use of the appellate process.

The claimant, the employer in a major hospital construction project, alleged that the defendant architects negligently issued certificates extending the contractual completion date. The certificates prevented the claimant from recovering liquidated damages for delay from the contractors in subsequent arbitration proceedings.

The Technology and Construction Court found no negligence concerning delay caused by late release of the site or safety cabinets. It found negligence in relation to part of the extension for Hydrotite, but accepted substantial extensions for Hydrotite and commissioning, including overlapping causes of delay. The claimant sought permission to challenge the overall period and the commissioning assessment. The architects sought permission to challenge the finding concerning the second Hydrotite certificate and the treatment of concurrent delay. The central issues were whether those findings had realistic prospects of being overturned and whether the proposed appeals could properly be determined without revisiting the judge’s overall assessment of the evidence.

Both applications for permission to appeal were refused. Sir Anthony Evans accepted that the Technology and Construction Court had adopted the correct legal approach.

1. Certification exercise. The architect’s task was not simply to estimate a period of delay. The architect had to estimate the likely date of final completion without allowing for the relevant event, then determine whether and to what extent that event would delay that date. The same exercise applied in principle after completion, although the actual completion date was then known.
2. Concurrent causes. Where delay resulted from several relevant events, the architect and the court had to consider the consequences for final completion in real time. An overall assessment on different hypotheses was required before attributing delay to individual events. The relationship between the Hydrotite and commissioning delays had been carefully considered, so the architects’ proposed arithmetic adjustment had no realistic prospect of success.
3. Appellate restraint. The claimant’s proposed challenge to the total extension period could not realistically succeed. Determining the issues would in any event require the Court of Appeal to examine the judge’s overall perspective, reopen substantial evidence and revisit conclusions that neither party challenged. That would be disproportionate and an incorrect use of the appeal process.

There was no order for costs in applications 95 and 96. A separate order for costs was made in application 97.

• Court of Appeal (Civil Division): On 9 February 2001, Sir Anthony Evans refused both applications for permission to appeal.
• Technology and Construction Court: On 18 December 2000, His Honour Judge Richard Seymour QC found no negligence on two grounds, but found that the architects had negligently over-certified part of the Hydrotite extension while upholding the material extensions relating to Hydrotite and commissioning.