Brookfield Construction (UK) Ltd v Foster & Partners Ltd & Anor

A contractual obligation to provide access to personnel and documents for a full and systematic review of services may survive completion of those services where the contract contains no limiting words. The obligation remains limited by its contractual purpose and must be exercised reasonably. The party seeking access must identify documents and put specific questions in advance. The supplying party must co-operate and answer as helpfully as possible, but need not retain particular personnel or provide unlimited repeated meetings. A declaration may properly be granted to establish and clarify contractual obligations. The court should not refuse a valid declaration merely because enforcement by specific performance might later be difficult.

Brookfield Construction (UK) Ltd sought declarations concerning clause 8.1 of a consultancy agreement with Foster & Partners Ltd and HOK Sport Ltd. The clause required assistance, including access to personnel and project information, to enable a full and systematic review of the defendants’ services. The application arose from Brookfield’s substantial dispute with Mott MacDonald, in which Mott had suggested that delay might be attributable to the defendants’ work.

The principal issues were whether clause 8.1 survived completion of the services, whether the services had in fact been completed, the proper scope of the assistance, and whether declarations should be refused because specific performance might be unavailable.

1. Clause 8.1 survived completion. On its proper construction, the obligation to provide access did not end when the services in Appendix 3 were completed. The word “review” contemplated looking back critically at services already performed. The clause contained no express time limit, whereas other provisions imposed specific temporal limits. The obligation was therefore continuing, although it was limited by purpose: access had to be sought for a full and systematic review of the defendants’ services.
2. The obligation was not rendered inconsistent with the records-retention provisions. Clause 13 concerned specified records retained for defined periods, whereas clause 8.1 covered a wider range of material, including internal emails and access to personnel. The court applied the contractual approach in Liverpool City Council v Irwin [1976] 2 All ER 39 and The Apostolis (No 2) [2000] 2 Lloyd’s Rep. 337.
3. The court provisionally considered that the services had not been completed. The clause 4.7(p) report did not certify completion of all services, no completion certificate under clause 4.7 had been issued, and the parties’ continuing work during the defects period was inconsistent with automatic completion. The issue was largely academic because clause 8.1 survived completion. The contractual definition of the Works prevailed over any inconsistent recital, applying Moon Ex parte Dawes [1886] 17 QBD 275 and T & N Limited (In Administration) v Royal & Sun Alliance [2003] 2 AE (Comm) 939.
4. Brookfield’s requested review was subject to practical limits. Brookfield had to prepare the documents, identify them in advance and ask specific questions. Meetings had to take place at the reasonable convenience of the defendants’ personnel, and repeated meetings should not be the norm. The defendants’ personnel had to answer clearly and helpfully, while recognising that they might not remember events. They had an overriding obligation to co-operate and not obstruct the process, applying Merton v Leach [1985] 32 BLR 51 and Mackay v Dick [1880-81] LR 6 App Cas 251.
5. Declarations were discretionary, but there was a legitimate dispute and no reason to refuse relief. The court applied FSA v Rourke [2002] C.P. Rep 14. It would be wrong to refuse valid declarations merely because the defendants might not comply or because later specific performance might be unavailable. Both declarations were granted, with Declaration 2 subject to a proviso requiring the requested matters to be addressed reasonably promptly and with reasonable clarity.