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	England and Wales High Court (Technology and Construction Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> John Sisk and Son Ltd v Capital & Centric (Rose) Ltd [2025] EWHC 594 (TCC) (14 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/TCC/2025/594.html Cite as: [2025] EWHC 594 (TCC)

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IN THE HIGH COURT OF JUSTICE
BUSINESS & PROPERTY COURTS IN MANCHESTER
TECHNOLOGY AND CONSTRUCTION COURT (KBD)

		Manchester Civil Justice Centre, 1 Bridge Street West, Manchester M60 9DJ
		Date Handed Down: 14 March 2025

 


Remote hand-down

This judgment was handed down remotely at 10:00am on 14 March 2025 by circulation to the parties or their representatives by email and by release to The National Archives.

His Honour Judge Stephen Davies:

Sect		Paras
A	Introduction and summary of decision	1 - 8
B	The key relevant clauses of the design and build contract	9 - 45
C	Sisk's pleaded case and the competing arguments	46 - 58
D	The relevant principles of contract interpretation	59 - 64
E	Should I have regard to the pre-contractual negotiations and, if so, on what basis and for what purpose(s)?	65 - 74
F	My decision as a matter of construction of the contract documents alone	75-120
G	Would my decision have been different if I had had regard to the pre-contractual negotiations?	121-135
H	The appropriate declaratory relief	136 - 137
I	Postscript – breach of the confidentiality restriction in the draft judgment	138 - 143

A. Introduction and summary of decision

1. This is my judgment on a Part 8 claim brought by the Claimant contractor ("Sisk") against the Defendant developer ("C&C"), in which Sisk seeks declaratory relief as to the proper construction of a clarification clause forming part of a risk allocation provision in a contract entered into between Sisk and C&C on 20 May 2022 for the design and construction of substantial works^[1] at Weir Mill, Chestergate, Stockport.
2. The contract was in the form of a JCT Design and Build Contract 2016 ("the design and build contract") with extensive bespoke amendments, including those the subject of the dispute.
3. In short, the dispute is as to who is contractually responsible for the risks associated with the existing structures on the site, including their ability to support and/or facilitate the proposed works.
4. Sisk set out its case in Particulars of its Part 8 Claim, supported by a witness statement of Mr Brian Cottam, its regional director for the area in question, who was responsible for the negotiation and operation of the design and build contract.
5. C&C was not required by Part 8 Civil Procedure Rules to, and did not, plead a response. It did serve witness evidence in response, from Mr Richard Spackman, its development director for this project, in which he referred to the negotiation of the contract and to various documents relevant to that process, but did not identify or argue C&C's case.
6. Before these proceedings were brought, Sisk had been the unsuccessful party in a referral to an adjudicator, who had found in C&C's favour on the same point. The declaration made by the adjudicator was that: "On a proper interpretation of the Contract and in particular clause 2.42 of the Contract and items 1 and 2 of the Contracts Clarifications schedule, the responsibility for ground conditions including the identification of the basements, structures, voids, compressed structural elements and obstructions under the existing West Mill was solely Sisk's risk"^[2]. That decision is, of course, only temporarily binding until the point is finally determined by court proceedings. Accordingly, it is for me to make my own decision without reference to the adjudicator's decision.
7. Neither party suggested that there was any need to cross-examine the other's witness, so that the hearing proceeded by way of written and oral submissions alone, from leading counsel for Sisk, Mr Simon Hargreaves KC, and from counsel for C&C, Mr Abdul Jinadu. I am very grateful to both for their clear and well-argued submissions.
8. My decision is that on a proper interpretation of the design and build contract and, in particular clause 2.42 and item two of the contract clarifications, the risk of the unsuitability of the existing structures (as defined in the contract), including their ability to support and/or facilitate the proposed works, lies solely with C&C.

B. The key relevant clauses of the design and build contract

9. In summary, clauses 2.42.1 to 2.42.3 inclusive of the amended conditions made clear that Sisk was contractually responsible for all risks in relation to the existing site, including the risk in relation to the condition of the existing structures and the risk of any of the information provided by C&C being wrong.
10. By clause 2.42.1: "The Employer gives no warranty or representation as to the condition of the Site, any existing buildings or structures on the Site or any adjoining property or any services in or under the Site or as to the accuracy, reliability or sufficiency of any soils or survey data, asbestos reports, condition surveys or other data contained in any document made available to the Contractor by the Employer or as to any recommendations or conclusions made or reached in any such document."
11. By clause 2.42.2: "The Contractor shall be deemed to have inspected and examined the Site and its surroundings and to have satisfied himself before the date of the Contract as to the nature of the ground, the sub-surface conditions and sub-soil (any information in connection therewith which may have been provided by or on behalf of the Employer being provided by way of information only without any warranty or representation as to its accuracy, reliability or completeness) the form and nature of the Site, existing buildings, services, utilities or structures on, in and under the Site, the extent, nature and difficulty of the work and materials necessary for the completion of the Works, the means of communication with and the restrictions of access to the Site, the accommodation he may require, and in general to have obtained for himself all necessary information as to risks, contingencies and all other circumstances influencing or affecting the Works or the occupation and intended use of the Site. The Contractor shall not be entitled to any extension of time or to any additional payment on the grounds of any misunderstanding or any such matter nor shall the Contractor be released from any of the risks accepted or obligations undertaken by him under this Contract on the ground that he did not or could not have foreseen any matter which might affect or have affected the carrying out and completion of the Works."
12. By clause 2.42.3: "The Contractor has had the opportunity of inspecting the physical conditions and other conditions of the Site and structures upon it and acknowledges that it shall be solely responsible for ensuring that the ground, the Site and any existing structures to be retained under or upon or adjacent to the Site are (or will upon completion of the Works) be suitable for the development and intended occupation and use of the Site to which the Works relate and the Contractor shall be responsible for dealing with any other matters required to be dealt with in order to complete the Works. Nothing referred to in this clause 2.42.3 shall give rise to an increase in or addition to the Contract Sum, nor to an extension of time, nor give rise to any right on the part of the Contractor to determine its employment on the grounds of any misunderstanding or any such matter nor shall the Contractor be released from any of the risks accepted or obligations undertaken by him under the Contract on the ground that he did not or could not have foreseen any matter which might affect or have affected the execution of the Works."
13. However, by clause 2.42.4: "This clause 2.42 shall be subject to item 2 of the Clarifications".
14. The bespoke contract definition of the Clarifications was: "The clarifications headed "Contract Clarifications" contained within Volume 2, Appendix 2.9 of the Employer's Requirements".
15. I shall need to consider what this refers to below. Before I do so, I should explain at this stage that in the electronic version of the contract there are two clarifications documents, one being a worksheet headed "contract clarifications" and the other being a worksheet headed "tender submission clarifications". In the paper version of the contract there is only one clarification document, which is a printed and initialled copy of the "contract clarifications" worksheet.
16. This is relevant because there is a dispute between the parties as to whether or not the tender submission clarifications falls within the contract definition of the Clarifications. Mr Hargreaves submits that it is only the former document which contains the "contract clarifications", whereas Mr Jinadu submits that it is both documents which do so. I thus begin by referring to the different formats in which the design and build contract appears.

B(i). The contract format

17. It is common ground that the contract was produced in an electronic format on a USB drive^[3] and also in a bound printed (hard copy) format. In his witness statement, Mr Cottam explained that the USB drive contained a number of documents which were not, largely due to their size, included in the hard copy document itself. He also confirmed that the hard copy and electronic copy contracts were produced by Arcadis, C&C's costs consultant. He does not suggest that Sisk did not have the opportunity to review both the electronic and the hard copy versions before signing the latter.
18. The bound copy of the printed contract was contained in one physical document, with a cover sheet showing that it was produced by Arcadis, and begins with a document entitled "Contents / Contract Register" which contains a comprehensive schedule of the contract documents.
19. As is usual with a professionally produced design and build contract relating to a substantial development project, it was a voluminous document, contained in a number of separate volumes as identified in the contract documents schedule.
20. Volume 1 contained the design and build contract itself, together with a schedule of amendments, five appendices and other identified documents, including the appointment contracts for the professional consultants, which included the well-known consultant civil and structural engineers, Arup, as well as the architects.
21. Volume 2 contained the (typically voluminous) Employer's Requirements, including documents such as the contract preliminaries and the specified (and numerous) reports, surveys, plans, details and specifications provided to Sisk for it to tender against, including the materials produced by Arup.
22. The contract documents schedule also identified that section 2.9 was a "Clarifications Schedule", which was described as the "Clarifications Document for inclusion into Contract" and said to be dated 17 May 2022 and produced jointly by Sisk and C&C. It is not disputed that this document is contained within an excel workbook entitled "Weir Mills_ Clarification Document for Contract Inclusion - 17.05.22 (004).xlsx", which was attached to an email sent by Mr Cottam to Cinns^[4], and copied to Mr Spackman, on that date.
23. Article 4 of the contract identified the Employer's Requirements as being those documents referred to as such "contained on [the] USB stick under folder Volume 2 and scheduled out in the Contract Register included within". Thus, there can be no doubt that the electronic version of the clarifications document was a contract document as much as was the hard copy version.
24. Volume 3 comprised the Contractor's Proposals which, in this case, simply adopted in full the Employers Requirements. Volume 4 simply contained the contract sum analysis.
25. As is commonplace in building contracts based on a standard form with bespoke amendments, the design and build contract provided that the schedule of amendments should take precedence over the standard form.
26. In the printed contract, the front page immediately preceding the clarifications document simply reads "2.9 Clarifications". It does not, unlike other similar front pages, also say in brackets "Please refer to enclosed Pendrive".
27. What appears in the printed version was only the contract clarifications document. This was exactly the same in both printed and electronic format, and is headed "Weir Mills Stockport contract clarifications May 17, 2022". It was also initialled on behalf of both parties on the hard copy version.
28. In the electronic version, it was included within a folder entitled "Clarifications" as a worksheet within the excel workbook. It had the electronic filename "consolidated clarifications".
29. It comprises only three columns and ten rows. The first column is numbered one to ten as appropriate, the second is headed: "Sisk Clarification" and the third is headed: "Comments / Risk Owner".
30. In row two these columns read, respectively:

	Sisk Clarification	Comments / Risk Owner
2	Existing Structures Risk including ability to support / facilitate proposed works	The Employer is to insure the Existing buildings/ works. Employer also to obtain warranty from Arup with regard to the suitability of the proposed works. Employer Risk

31. The other electronic document is in electronic format only and is a longer document, entitled "tender submission clarifications". There is no express reference to it either in the contracts documents schedule or anywhere else in the contract.
32. Under the title it states: "General Note - We have removed all items from the Tender Clarifications issued 15-03-22 which relate to matters agreed within the road map as these are to be realigned within the final Employers Requirements - refer to separate summary".
33. It contains a number of separate rows under five sub-headings, of which the first is "contract conditions" and the second is "design responsibility". There are nine columns, from A to I, of which B is headed "Sisk Clarification", C is headed "Additional comments" (which are plainly additional comments input by Sisk), D and E are headed "Pricing confirmation" (which are also plainly comments input by Sisk – they confirm either that "Sisk is unable to price" or "risk can be priced"). Column F is un-headed, but is plainly C&C's response to Sisk's clarification. Column G is headed "Position Agreed/Discussed in Meeting on 22.03.2022" and, finally, column H is headed "Sisk Response 24-03-22".
34. It is common ground that when the clarifications worksheet forming part of the electronic contract is first opened column F is not visible. In order to reveal it, the surrounding columns need to be selected and the highlighted area right clicked and the option "unhide" selected. Although there is no specific evidence about this, it is not suggested by Sisk, and nor is there any reason to believe, that this was done as a deliberate tactic by C&C to conceal the column from sight by Sisk. The most likely explanation in my judgment is that there was no perceived need to include these comments because they were overtaken by the entries in columns G and H and in order to avoid the need for unnecessary scrolling right to see the columns of immediate relevance if they were included.
35. Along the first "contract conditions" row, the Sisk clarification reads: "Refer to separate tab for detailed schedule also issued to Cinns 3rd February 22". The Sisk additional comments reads: "Received from Cinns 16-03-22 currently under review". C&C's comments under F reads: "TBC – Not reviewed as cannot accept the below". There is no further wording under columns G or H. This appears to indicate that as at 16 March 2022 the contract conditions were to be the subject of separate consideration elsewhere, and the document does not contain any information as to where the results of such further consideration were to be found as at the date of entry into the design and build contract.
36. The relevant row for present purposes is item 2.1.02, sitting under section 2 (design responsibility). The Sisk clarification reads: "Existing Structures Risk sits with the Employer including insurance"; Sisk's additional comments reads: "Employer to warrant that the structural condition of the existing fabric is suitable to facilitate the new works"; Sisk's pricing confirmation is ticked "Unable to price". C&C's comments under F, concealed unless opened as explained above, reads: "Not accepted. PCSA^[5] period has been for Sisk to satisfy themselves on exactly these issues. We will categorically not accept a blanket exclusion on existing structures". The entry under "Position Agreed/Discussed in Meeting on 22.03.2022" reads: "Confirmed in the meeting that this is to clarify the employer is to insure the buildings in line with JCT option C" and, finally, the entry under "Sisk Response 24-03-22" reads: "Agreed".
37. The standard (and unamended) definition of "Existing Structures" is "any and all existing structures within which the Works or part of them are to be executed or to which they are to form an extension …".

B(ii) relevant contractual provisions relating to consultants

38. It is necessary, when considering the proper interpretation of contract clarification two, to consider the contract provisions in relation to the position of Arup, employed by C&C to undertake pre-contract investigations. As is well-known, the employment of such consultants is often – but not always – novated to the design and build contractor once the design and build contract is entered into, because of course the design and build contractor will be responsible for design going forwards and will, therefore, typically want to have a direct contractual relationship with the consultant to obtain such further assistance with the design as may be required.
39. Here, clause 7F, as introduced by the schedule of amendments, provided for Sisk to accept, on request, a novation of the employment of any of C&C's consultants and also to agree that it would accept full responsibility for their work and design.
40. The pro forma deed of appointment of a consultant by Sisk contained relatively standard provisions to reflect this novation, which also enabled Sisk to make claims against the consultant for breaches committed before the novation. Again, this is commonplace if the design and build contractor is taking the risk of the existing design by the consultant being wrong.

B(iii) relevant contractual insuring provisions

41. The contract particulars provided, in relation to clause 6.7 and Schedule 3, that Insurance Option C.1 applies. Under this provision C&C was required to take out a joint names policy to insure the Existing Structures against loss or damage by the Specified Perils and the Works against All Risks.
42. The Specified Perils were limited in scope, including such matters as fire and flood but not including intrinsic defect in or unsuitability of the existing structures.
43. All Risks Insurance covered physical loss or damage to work executed. This might^[6] include physical loss or damage to works due to the inability of the existing structures to support the works. Even, however, if it did cover the cost of rectifying the physical loss or damage to the work, it would not appear to include consequential losses, such as delay related costs.
44. These contractual provisions can reasonably be read as the equivalent of an obligation for "the Employer to insure the existing buildings / works", which is the insurance which C&C was to obtain under contract clarification two. There has been no evidence or argument to contrary effect.
45. If so, then it may be said that this part of contract clarification two would appear to add nothing to the contractual obligations found in the insuring provisions of the design and build contract. However, it should of course be observed that the parties had the choice of which insurance provisions to incorporate and they might, for example, have chosen Insurance Option A, under which it would have been for Sisk as the contractor to procure all risks insurance for new buildings alone. In other words, contract clarification two is consistent with the choice of insurance option C.1. Given that there was a choice of insuring options, the inclusion in the contract as executed of insurance option C.1 as well as this part of contract clarification two demonstrates internal consistency as well as, possibly, unnecessary surplusage.

C. Sisk's pleaded case and the competing arguments

46. Sisk's pleaded case is that (i) contract clarification two addresses which party will bear the existing structures risk; (ii) the third column headed "Comments/Risk Owner" designates this as an "employer risk"; (iii) the words "employer risk" bear their ordinary meaning in the context of a construction contract, namely if the risk eventuates the contractor is entitled to additional time within which to complete the works and additional money for the costs incurred as a result of the risk event; and (iv) thus, the meaning of contract clarification two is that insofar as additional costs or additional delay were incurred as a result of the state of the existing structures, the costs and delay are to be borne by C&C by way of additional payment to Sisk and an extension of time.
47. Sisk then pleads two examples of disputes arising from claims for extensions of time and recovery of additional costs due to events falling within clarification two and C&C's rejection of such claims. In relation to C&C's reliance on the tender submission clarifications, it pleads that it was found on a USB stick incorporated by reference, and that it "merely records the initial qualification and some history of negotiations", whereas the contract clarifications "records the final contractual position" and, finally, that "insofar as there is a conflict between the Clarifications and the Tender Clarifications, the former is to be preferred because it was included on the face of the executed contract".
48. Sisk then seeks declarations that:

a. Under the contract the risk of additional cost or delay being incurred as a result of the state of the existing structures, including their being unable to support or facilitate the proposed works, lies with C&C.

b. It is entitled to an extension of time and additional money in the event that additional cost or delay is incurred as a result of the state of the existing structures, including their being unable to support or facilitate the proposed works.

49. C&C has not argued that if Sisk succeeds in its contract interpretation case before me these declarations are nonetheless inappropriate.
50. Sisk did not, however, plead a positive case that the tender submission clarifications document was not a contractual document and nor did it plead a positive case that the negotiations leading up to the entry into the contract were admissible or relevant to its interpretation. Mr Hargreaves did, however, in his skeleton argument, contend that if C&C was entitled to have recourse to the parties' negotiations as an aid to the construction of clarification two, those negotiations would not assist it, and it set out a detailed narrative as to why that was so.
51. In his oral submissions, Mr Hargreaves submitted that there was a "very curious situation in which the document appears to be both in the contract and not in the contract at one and the same time". He went on to submit that, insofar as there had been a concession in the Particulars of Claim that it was a contract document, it should not bind the court as a point of law and, if necessary, he would apply to withdraw the concession.
52. In my judgment there is no proper basis for my permitting Sisk to argue that the tender submission clarifications was not a contract document, given that this was not a positive pleaded case and there has been no formal application to amend to plead such a case. If that point had been pleaded from the outset, C&C might have chosen to adduce detailed evidence to explain how the contract came to be produced in printed and in electronic form and, in the latter case, how it came to include the excel workbook with both worksheets included. Whether that evidence would have been admissible would have been for submission, but it would be wrong to allow Sisk to run a point to which C&C has not had the luxury of time fully to investigate.
53. Further, in a Part 8 case such as the present, where Sisk is seeking wide-ranging declaratory relief as to the construction of the contract, rather than a final determination of substantive claims after a trial, it is particularly important in my judgment to ensure that it does not depart from its pleaded case in any significant respect.
54. In any event, I do not consider that Sisk could credibly argue that it was not a contract document anyway although Sisk can, as it does, argue that the weight to be attached to the document should be nil – or, at best, minimal - having regard to the relevant circumstances.
55. Neither Sisk nor C&C has advanced a case based on estoppel or rectification and nor is there any evidence from either to support such a contention. I should also note in this respect that clause 1.13 as amended contained an entire agreement clause which stated: "This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter".
56. C&C's primary case, as appears from Mr Jinadu's submissions, is that: (a) the tender submission clarifications is a contract document; (b) the position recorded in the tender submission clarifications in relation to the existing structures risk was agreed, did not change, and is consistent with the terms of clause 2.42; and (c) the objective fact established by the tender submission clarifications is that Sisk attempted to divest itself of the risk associated with the existing structures and C&C unequivocally rejected that attempt.
57. As to Sisk's submission that the tender submission clarifications document merely records the initial stage of the contract negotiation process, whereas the contract clarifications record the final contractual position, Mr Jinadu submits that: (a) this is inconsistent with the express agreement in the tender submission clarifications as regards the existing structures risk; and (b) there is no evidence that the parties revisited this issue after the tender submission clarifications and reached a different agreement and, indeed, such a submission is contrary to the contemporaneous documents. He then set out in his skeleton a detailed analysis of the contemporaneous documents to support his case in that respect.
58. Both parties maintained their respective cases in oral submissions and I received a detailed analysis from both as to the chronology of the contract negotiations in case I was persuaded that they were admissible and relevant. That neatly brings me on to the applicable principles of contract construction.

D. The relevant principles of contract interpretation

59. There is no need to refer in any detail to the general principles, which are by now well-established. They are set out in the relevant sections of: (a) Chitty on Contracts (25th edition) (Chitty); (b) The Interpretation of Contracts by Sir Kim Lewison (8th edition) (Lewison); and (c) particularly as regards construction contracts, Keating on Construction Contracts (11th edition) (Keating). Mr Jinadu also referred me to the helpful summary by Beatson LJ in Globe Motors Inc v TRW Lucas Varity Electric Steering Ltd [2016] EWCA Civ 396 at paragraphs 55 to 63.
60. I do however need to address the ambit of the relevant admissible factual matrix. The principles are well summarised in Chitty at chapter 16, section 3(c) – the Matrix of Fact, paragraphs 16-056 to 16-062, and in Lewison in section 9 – Pre-contractual Negotiations, paragraphs 3.43 to 3.65. Mr Jinadu also referred me to the speech of Lord Clarke in Oceanbulk Shipping & Trading SA v TMT Asia Limited [2010] UKSC 44 at paragraphs 36 to 45.
61. The general rule, prohibiting the reception of evidence of pre-contractual negotiations, and the exceptions to that rule are helpfully summarised at the beginning of section 9 of Lewison (so far as material) as follows:

"Evidence of pre-contractual negotiations is not generally admissible to interpret the concluded written agreement. But evidence of pre-contractual negotiations is admissible to establish that a fact was known to both parties; … to determine which party put forward a particular term^[7]; and to elucidate the general object of the contract. Evidence that parties negotiated on the basis of an agreed meaning is only admissible in support of a claim of estoppel or rectification."

62. It is important, therefore, that in this case any admissible evidence is directed either to a particular known fact or to the general object of the contract.
63. As to the latter, also sometimes referred to as the genesis and aim of the transaction, the demarcation line between what is and is not permissible was considered by the Court of Appeal in Merthyr (South Wales) Limited v Merthyr Tydfil County BC [2019] EWCA Civ 256 where Leggatt LJ observed (at paragraph 44) that:

"… What is not permissible, as the decision of the House of Lords in the Chartbrook case confirms, is to seek to rely on evidence of what was said during the course of pre-contractual negotiations for the purpose of drawing inferences about what the contract should be understood to mean. It is also clear from the Chartbrook case that it is not only statements reflecting one party's intentions or aspirations which are excluded for this purpose but also communications which are capable of showing that the parties reached a consensus on a particular point or used words in an agreed sense. The exclusion of such evidence was justified in the Chartbrook case, not on the ground that it will always or necessarily be irrelevant, but because of the costs and other practical disadvantages that would result from relaxing the rule and because the "safety devices" of rectification and estoppel will generally prevent the exclusionary rule from causing injustice."

64. In this case, I need to keep that distinction plainly in mind.

E. Should I have regard to the pre-contractual negotiations and, if so, on what basis and for what purpose(s)?

65. In my judgment there is no proper basis in this case for me to have regard to the pre-contractual negotiations as admissible. That would be to depart from the clear guidance in the textbooks and the authorities referred to.
66. Mr Jinadu submitted that the fact that the parties had agreed the allocation of risk in relation to existing structures was an objective background fact and, hence, fell within the scope of the exceptions to the rule against admitting evidence of pre-contractual negotiations.
67. However, in my judgment, that submission extends the meaning of objective background facts beyond the meaning conferred by the authorities. In reality, what Mr Jinadu wishes to do is to seek to admit the pre-contractual negotiations to show that: (a) as at 24 March 2022, a full two months before the contract was signed: (i) C&C had rejected Sisk's initial request for it to provide a full existing structures suitability warranty; and (ii) the parties had reached an agreement limited to C&C taking out option C insurance; and (b) at no time within the following two months up to and including the date of conclusion of the contract did C&C agree to accept the existing structures risk.
68. It is not in dispute that C&C can, and does, seek to make good that argument as a matter of contract construction, by reference to the contract documents and, specifically, the contract clarifications and the tender submission clarifications.
69. What C&C cannot do, in my judgment, is to seek to buttress that argument by referring, additionally, to the pre-contractual negotiations to show that: (i) the parties had agreed that the agreement recorded in the tender submission clarifications meant what C&C says it was intended to mean; (ii) there was no explicit change of position thereafter under which the parties expressly agreed a change to this agreed intended meaning; and, thus, that (iii) the agreement recorded in the contract clarifications should also be construed as meaning what the agreement recorded in the tender submission clarifications was agreed as being intended to mean. Such an argument plainly offends against the restriction of admission of pre-contractual negotiations.
70. In the same way, Sisk cannot seek to buttress its argument as a matter of contract construction by reference to the pre-contractual negotiations with a view to seeking to show that: (i) whatever was agreed as at 24 March 2022 and recorded in the tender submission clarifications, there was an express renegotiation process over the next two months in which the parties reached a different agreed position, which is reflected in the contract clarifications; and therefore (ii) the contract clarifications should be interpreted to mean what Sisk contends that the parties agreed it was intended to mean at that point in time.
71. Even if I am unfairly characterising the respective submissions, and if all that C&C wishes to do is to show that there was no further discussion or negotiation about the existing structures risk issue from 24 March 2022 to 20 May 2022, and all that Sisk wishes to do is to show that there was some further discussion and negotiation about the existing structures risk over the same period, nonetheless in my judgment even that more limited exercise still seeks to open up the pre-contractual negotiations for a purpose which is not recognised as one of the established exceptions to the rule.
72. I accept that the parties did put before me documents expressly referred to in the tender submission clarifications, which I accept are admissible under the factual matrix as showing what the parties were referring to in that document as relevant to the existing structures risk. However, the parties did not limit themselves to these documents or provide a clear explanation as to why they were relevant or make submissions on that basis.
73. Moreover, that was only the start of the exercise in which both parties engaged. They each also referred me to selected correspondence and attachments from March 2022 to May 2022 with a view to explaining how, on their case, the question of the existing structures risk either was or was not continued as a subject for further negotiation in a different document and either was or was not agreed differently from in the tender submission clarifications in that different document, or a subsequent variant of such document. That, as I have explained, is an illegitimate exercise.
74. Thus, I address the issue as a matter of contract construction of the contract documents alone.

F. My decision as a matter of construction of the contract documents alone

75. As I have already said, and as is not in dispute, clauses 2.42.1 to 2.42.3 make clear that Sisk was contractually responsible for all risks in relation to the condition of the site, including the risk in relation to the condition of the existing structures and the risk of any of the information provided by C&C being wrong. These clauses are not limited to the site or the existing structures and extend, for example, to any adjoining properties, to services, and to all data, reports and surveys provided to Sisk by C&C, and "all necessary information as to risks, contingencies and all other circumstances influencing or affecting the Works or the occupation and intended use of the Site".
76. The only qualification to this comprehensive allocation of risk is found in the contract clarifications, in this case number two.
77. I have already noted that the bespoke contract definition of the Clarifications was "the clarifications headed "Contract Clarifications" contained within Volume 2, Appendix 2.9 of the Employer's Requirements".
78. I have also already noted that section 2.9 was described as the "Clarifications Document for inclusion into Contract" dated 17 May 2022 which, in electronic format, comprises the excel workbook entitled "Weir Mills_ Clarification Document for Contract Inclusion - 17.05.22 (004).xlsx" and, thus, includes both the contract clarifications and the tender submission clarifications worksheets.
79. Mr Jinadu submitted that it followed that the contract definition of "Clarifications" included both.
80. I am unable to accept this submission. Section 2.9 referred to a Clarifications Document, not to a Contract Clarifications Document. The contract definition refers expressly to "the clarifications headed "Contract Clarifications" contained within Volume 2, Appendix 2.9 of the Employer's Requirements". It is plain in my judgment that this can only be referring to the specific contract clarifications worksheet which is "within" the Clarifications Document, rather than to the whole workbook.
81. This conclusion is reinforced by clause 2.42.4 which refers to "item 2 of the Clarifications". It is obvious from the content of the contract clarifications and the tender submission clarifications that this can only be a reference to item two of the former. It could not sensibly be read as a reference to item two of the latter, which is headed "design responsibility", where the existing structures risk is only one part of that item (item 2.1.02) and where the remaining items refer to design responsibility issues extending far beyond the existing structures.
82. It follows in my judgment that the starting point for ascertaining the proper construction of clause 2.42.4 is what appears in the contract clarifications document itself.

F(i) The contract clarifications document

83. I have already referred to contract clarification two, where the "Sisk clarification" states "Existing Structures Risk including ability to support / facilitate proposed works" and the "Comments / Risk Owner" states "The Employer is to insure the Existing buildings/ works. Employer also to obtain warranty from Arup with regard to the suitability of the proposed works. Employer Risk".
84. There is no contract definition of "Existing Structures Risk" or "Employer Risk". They can, however, reasonably obviously be understood in their normal or natural meaning, especially in the context of construction contracts generally and this design and build contract in particular, as referring respectively to: (a) the contractual risks associated with the condition of the existing structures (as a defined term); and (b) the contractual risks accepted by the employer.
85. In the context of the design and build contract the first comment, that C&C is to insure the existing building / works, can reasonably easily be understood as referring to the selection of insurance option C.1. Given that this was to be a joint names policy and to confer benefits on both, it is difficult to see this as an allocation of risk upon C&C. Instead, it is most obviously to be understood as an allocation of responsibility, i.e. that it was for C&C to take out this joint names policy. It could, I suppose, be said to be an allocation of risk insofar as if C&C failed to take this insurance policy out it might have a liability to Sisk for any loss suffered by Sisk as a consequence. However that is not a primary risk allocation, as opposed to a secondary risk flowing from a primary responsibility allocation.
86. The second comment, that C&C was also to obtain a warranty from Arup with regard to the suitability of the proposed works, is not quite so straightforward to understand.
87. First, it is not immediately obvious how Arup could reasonably have been expected to provide an unqualified warranty as to the suitability of the proposed works. If approached, Arup might well have asked – suitability of what works and for what purpose or purposes?
88. Nonetheless, in the context of the Sisk clarification against which this comment appears, and the general nature of the investigations identified as having been undertaken by Arup in the Employer's Requirements, it is reasonably clear in my judgment that this can only sensibly be understood as a rather loose shorthand for a warranty of the suitability of the existing structures to support and facilitate the proposed works.
89. Second, it is trite law that any consultant such as Arup will, in the absence of contractual provision to the contrary, be taken as having impliedly warranted to its client that it has provided its professional services with reasonable care and skill. However, in the absence of express provision to this effect, it will not have warranted to its client that its pre-contractual investigations can be relied upon as demonstrating that the proposed contract works can suitably be carried out.
90. This is important, because in almost any design and build contract there will be a residual risk that unforeseen obstacles will be encountered which show either that the proposed works cannot suitably be carried out or that they can only be carried out at much greater expense than envisaged. That risk may, or may not, be a consequence of a breach of the consultant's duty of care.
91. It follows that the question as to who, as between the employer and the contractor, bears the contractual risk of these unforeseen risks is a matter which, if a risk eventuates, will have to be determined by the relevant provisions of the design and build contract in question.
92. Here, for example, the amended Third Recital stated that: "Subject to item 1 of the Clarifications, the Contractor has examined the Employer's Requirements and is satisfied: (a) as to the feasibility and practicality of the Employer's Requirements and has agreed to accept full responsibility for any design contained in them; and (b) that the Contractor's Proposals and the Contract Sum Analysis will meet the Employer's Requirements in all respects; and (c) that the Employer's Requirements can be carried out within the timescale envisaged therein and at the cost indicated in the Contract Sum Analysis".
93. However, item one of the contract clarifications stated: "Employer to retain all risk for the original concept design and feasibility of project".
94. These bespoke provisions well illustrate how the negotiation and agreement of such issues can lead to a final contractual position of some complexity, so that if a dispute in relation to this contract arose it might be necessary to decide whether a particular risk fell within or without the scope of the contractual carve-out of responsibility for the original concept design and feasibility of the project.
95. The question as to who, if anyone, would be entitled to seek to pass on any such contractual liability as they may have against any consultant would then need to be considered. Here, the novation provisions of the design and build contract in respect of consultants to which I have referred above would not, if implemented by C&C, confer on Sisk a warranty from Arup with regards to the suitability of the proposed works, which is what C&C was to obtain under contract clarification two.
96. It follows, in my judgment, that this provision can only sensibly be understood to mean the procurement by C&C of an express warranty of suitability from Arup. It is not entirely clear from this provision, read in isolation, whether it is referring to a warranty to be given by Arup to C&C, either with or without a further provision allowing C&C to assign the warranty to Sisk as the design and build contractor, or a warranty procured by C&C to be given direct by Arup to Sisk.
97. However, there is no admissible (or indeed other) evidence that, at the point of contracting, both parties were aware that C&C had obtained, or had an enforceable contractual right to obtain, such a warranty as against Arup, whether for itself or for the benefit of Sisk. Indeed, as Mr Hargreaves submitted, it would be most unlikely that any professional services consultancy such as Arup would be prepared, or even allowed by its professional indemnity insurers, to give such a wide warranty. Whilst subsequent events are not admissible to the interpretation of the contract, Mr Hargreaves' submission is fortified by the apparent absence of any such warranty having been provided by Arup, either at the time of the contract or subsequently.
98. It thus follows in my judgment from the wording of contract clarification two, read in isolation, that this part of the clause was not obviously intended to impose any specific contractual obligation on either C&C or Sisk or both. It cannot be read as an obligation on C&C to procure that Arup should provide a suitability warranty to Sisk, whether directly or by way of novation or assignment or similar. Instead, it was more likely simply intended to be a "comment", i.e. that C&C was responsible for obtaining any such warranty from Arup.
99. What then about the concluding words "Employer Risk"? Mr Jinadu submitted that they were to be understood as meaning that C&C had the contractual risk of a failure to provide the required insurance and/or to provide the required Arup warranty. It is difficult, however, in my judgment to understand what this risk means on that basis. If C&C held this risk, then the most obvious explanation is that this is because it held the risk in relation to the existing structures and, thus, needed the insurance and the warranty to cover itself against that risk. Mr Jinadu's submission involves an argument that Sisk held the existing structures risk, but had a legally enforceable right that C&C should obtain the required insurance and the required Arup suitability warranty. On this analysis, then if C&C failed to do either, and Sisk suffered loss as a result because it held the existing structures risk, then Sisk might be able to defend itself against any claim by relying on C&C's breach, assuming it could show that if C&C had obtained a warranty this loss could have been recovered against Arup. Whilst I accept that this is not a wholly implausible argument, it is in my view far less likely than the more obvious explanation that C&C accepted the contractual risk as regards the suitability of the existing structures. That is especially so, given the narrow ambit of the joint names policy and the contemporaneous uncertainty as to what, if anything, C&C expected to obtain from Arup and how that would assist Sisk in the event of the existing structures being unsuitable.
100. Thus, the far more likely meaning of these words in my judgment, when read against the column heading and the Sisk clarification, is that C&C was the "risk owner", i.e. it held the contractual risk as to the suitability of the existing structures including their suitability to support and facilitate the contract works.
101. On this analysis, clause 2.42.4 simply provides a limited carve out to the otherwise wide ambit of clauses 2.42.1 to 2.42.3. It does not, contrary to Mr Jinadu's submission, deprive those clauses of all effect, only of specific effect in relation to this existing structures risk, which was only one of the risks imposed on Sisk under clauses 2.42.1 to 2.42.3.
102. Of course, the above conclusion is only a "first pass" analysis by reference to clause 2.42 and contract clarification two, and it is necessary to proceed to consider the other relevant provisions of the contract clarifications, the tender submission clarifications and the contract as a whole to see whether they shed any light on what is, I accept, a not entirely straightforward question.
103. I have already referred to the first contract clarification. This is straightforward in that it states "Employer to retain all risk for the original concept design and feasibility of project"; "Employer Responsibility / Risk". This is consistent with the words "Employer Risk" being used to mean the contractual risk allocation when appearing under the column heading "Comments / Risk Owner".
104. The third contract clarification states, under Sisk clarification, "Surveys identified within Volume 2 - Employer's Requirements, section 2.2 (items 2.2.1 to 2.2.21) of the Contract Documents" and, under Comments / Risk Owner, "Employer Risk which will be passed to Sisk upon receipt of Letters of reliance and/or warranties for all surveys referred and included within ER's. All other surveys (including those in the ER's) remain responsibility of the contractor".
105. This also supports my provisional conclusion in relation to contract clarification two, because it makes clear that the contractual risk associated with these specified surveys remains with C&C unless and until "receipt of letters of reliance and/or warranties for these surveys". Whilst also not a model of linguistic clarity, its meaning is reasonably clear in my judgment, which is that it is for C&C to provide a letter of reliance or a warranty in favour of Sisk from each consultant which has provided each of the specified surveys. A letter of reliance or a warranty is obviously different from a full scale novation of the consultant's appointment. It is the equivalent of the typical collateral warranty which consultants are frequently asked to provide to non-clients, such as a design and build contractors who are not taking over their employment, or the intended future occupiers of a development. Again, therefore, one can see from this that C&C is the risk owner for these surveys unless and until these further documents are obtained.
106. It is unnecessary to refer in any detail to the remaining contract clarifications four to ten. They are all consistent with the provisional view I have reached as to the interpretation of contract clarification two. Contract clarification four makes clear that C&C takes the responsibility and the risk for five specific tunnels which have not been fully surveyed. The remainder deal with other specific issues, and either expressly allocate the risk to C&C or clarify the risk as between the two parties in relation to those issues.

F(ii) The tender submission clarifications document

107. This document is plainly potentially relevant, like any other contract document, to the interpretation of contract clarification two. However, it is potentially relevant on the more limited basis than the other provisions of the contract clarifications in that – as I have found - it is not itself a contract clarification or, thus, to be read into clause 2.42.4 in the same way as the contract clarifications themselves.
108. Nonetheless, it is clearly a document which may objectively be assumed to have some relevance to the contract clarifications, because both documents both form part of the same excel worksheet, collectively referred to as the clarifications document in the documents register.
109. As against that, it cannot be ignored that: (a) it is not referred to in the contract clarifications document or elsewhere in the contract documents as being relevant to contract clarification two or more generally as to the existing structures risk; (b) it does not appear in the printed contract^[8], whether as a signed document or otherwise, nor is it referred to in the contract documents schedule, either specifically or even by stating that it is included in the pendrive, when it would have been reasonably straightforward for this to be done. There is no evidence as to why this did not happen. It probably would have been inadmissible even if there was such evidence. What can be said is that on an objective assessment neither party considered it necessary to identify it as part of the contract clarifications document, or to refer to it in that context, or to refer to it expressly in the contract documents schedule, or to print it out. These matters are all relevant to the weight to be attached, objectively, to the document.
110. Nor can it be ignored, as I have already noted, that the relevant entry appears under the heading "design responsibility" rather than "contract conditions", the latter being an issue which was – on the face of the document - being addressed separately under a separate schedule. This, on the face of the document itself, may be consistent with the General Note which, as I have already noted, refers to certain removed items to be "realigned within the final Employers Requirements".
111. If one then follows through the text entered against each column, as identified in paragraph 36 above, it can be seen that: (i) Sisk is putting forward: (a) a position that the existing structures risk (including insurance) was an employer's risk; and (b) a request that C&C warrant the suitability of the existing structures risk; (ii) C&C's response, which – as a matter of objective fact - was "hidden" in the contract version, was not to accept "these issues" or a "blanket exclusion on existing structures"; and finally (iii) the position as clarified, confirmed at the meeting on 22 March 2022 and agreed by Sisk as at 24 March 2022, was that C&C was to insure the buildings in accordance with option C.
112. It seems to me that, as with the other documents to which I have already referred, this text is likewise not a model of clarity. What I think is reasonably clear is that the only actual specific agreement reached was in relation to insurance, with also a strong indication that C&C was unwilling to give an existing structures suitability warranty or to accept that it held the existing structures risk and that Sisk was not specifically challenging this. However, there was no specific recorded agreement that Sisk had agreed to accept the existing structures risk. Looked at objectively, it could well be inferred that Sisk had done so however, alternatively, it could also be inferred that it was a matter for further discussion, perhaps in the continuing dialogue in relation to the contract conditions and/or the Employer's Requirements. The latter option cannot be ruled out as a possibility.
113. C&C's position is that: (a) this section of the tender submission clarifications shows that these issues were resolved by agreement as at 24 March 2022; (b) if and insofar as contract clarification two is ambiguous^[9], then such ambiguity should be resolved in its favour by reference to this section of the tender submission clarifications.
114. The difficulties with this submission, in my view, are: (i) first, the lack of clarity as to what this clarification actually means; (ii) second, the lengthy time gap between what is recorded as agreed in this document and the date of the contract clarifications documents and the final design and build contract; (iii) third, the apparent recognition in this document that contract conditions and/or Employer's Requirements issues are being addressed in a separate tab and schedule; (iv) fourth, the obvious indication in contract clarification two that there was, on any view, a change of position in relation to the Arup suitability warranty; and (v) fifth (and finally), the absence of any contractually admissible evidence to support the invitation to the court to conclude that the parties had not only agreed the position as at 24 March 2022 but had also agreed that the agreed position was set in stone and would not be revisited or revised at any point subsequently.
115. In short, in seeking to persuade me that the parties had agreed not to revisit this issue, C&C is unable to do so other than by asking me to receive evidence of the course of the further negotiations from 24 March 2022 to 20 May 2022 to demonstrate that this issue was either not revisited at all or, if it was, there was no different agreement reached in relation to this issue, so that any ambiguities in contract clarification two can be resolved on the basis that it can only mean the same as what was agreed on 24 March 2022. On any view of the law, the only legally acceptable method of doing so would be by way of pleading a claim for rectification or estoppel and by leading evidence to support such a case. C&C has not attempted to do either.
116. Otherwise, if all that C&C can say is that this document records an apparently clear agreed position in March 2022, then all that it can submit is that, whatever the Arup suitability warranty may actually mean, it is inherently implausible that the concluding words "Employer Risk" could, objectively, have been intended to show that the parties had reached a diametrically opposed agreed contractual position to that reached two months previously.
117. That is a point which I accept has force. But, on the view which I take as to the meaning of the Arup suitability warranty, the contrary argument is that if C&C was satisfied by 20 May 2022 that it could obtain a suitability warranty from Arup, as well as take out the joint names works and existing structures insurance policy, then there is no objectively compelling reason why it should not have been prepared to accept the existing structures risk at that stage, especially if Sisk was unwilling to do so. In short, positions can and do change, often very considerably, in the course of a lengthy contract negotiation process such as the present, and it would be wrong in my view to place too much weight on a submission that it is wholly implausible that this is what happened in this case.
118. In the end, I am not satisfied that on an objective analysis the words "Employer Risk" can mean anything other than that the risk associated with the suitability of the existing structures was being accepted by C&C as being its contractual risk. To the contrary, that is precisely why this contract clarification was included within the contract clarifications document. Otherwise, one might ask rhetorically why even include it – especially when the tender submission clarifications document showed how sensitive C&C had been to Sisk's attempt two months previously to get it to accept this risk. Assessed objectively, it appears extremely unlikely that C&C, advised by two separate consultancies as well as, it appears, by external lawyers, could have agreed to the inclusion of these two words in the mistaken belief that it was not agreeing to take the employer's risk for the existing structures suitability.
119. There is nothing else of relevance in the contract which would be relevant to the question of contract interpretation I must resolve, other than the insuring and consultant novation provisions to which I have already referred.
120. Hence, my eventual conclusion is that Sisk is correct in its case on this point.

G. Would my decision have been different if I had had regard to the pre-contractual negotiations?

121. I address this question briefly, in case C&C is dissatisfied with my decision and wishes to argue in a higher court that admitting the pre-contractual negotiations would (or should) have led to a different outcome.
122. As early as 3 February 2022 Sisk was providing comments on the draft schedule of amendments to the JCT contract, via an excel spreadsheet referred to as a "JCT amendments – summary tracker" (the schedule of amendments), and referring to the need to discuss matters such as the "risk associated with existing structures". On the same day C&C responded, making its view clear that this risk needed to sit with Sisk, as had been made clear from "day one".
123. On 15 March 2022 Sisk sent three documents to C&C for "review and further discussion". These comprised: (a) a tender submissions clarifications document, being the precursor of the contractual document of that name; (b) a further version of the schedule of amendments; (c) a schedule of pricing notes (also referred to as a road map).
124. The tender submission clarifications included the same entry at item 1.0 as in the final version, which makes clear that the "detailed schedule" referred to was the schedule of amendments, but does not include the "general note", which first appeared in the version two days later sent on 17 March 2022.
125. On 17 March 2022 Sisk sent two versions of the tender submission clarifications which both included the general note, with one including and the other excluding matters agreed in the road map which were to be "re-aligned with the final Employer's Requirements".
126. It was also over the period from 15 to 17 March 2022 that Sisk introduced the entries under Sisk clarification and additional comments into the tender submission clarifications.
127. It is common ground that the tender submission clarifications was updated to include the entries under C&C's comments, the position as agreed / discussed at the meeting on 22 March 2022 and Sisk's response of 24 March 2022. On the face of it, therefore, this issue appeared to have been agreed at this stage.
128. However, Sisk sent an email a day later on 25 March 2022 which attached an updated version of the schedule of amendments. This itself stated, in response to clause 2.42, that "Sisk are being asked to take responsibility for existing structures, ground, surveys etc as the Employer will not warrant. Sisk are unable to take responsibility for existing structures. Sisk require warranties from the parties who have carried out surveys etc. Clause requires negotiation and responsibility matrix agreed / incorporated". Sisk proposed a meeting to discuss the schedule of amendments.
129. A further email from Sisk dated 31 March 2022 followed the meeting which had taken place and included Sisk's notes of the meeting which recorded, in relation to clause 2.42, that the wording was to be re-drafted to take into account "the 2 points raised from our Clarifications with regard to insurance and that the Employers responsibility relating to the Structures and their ability to accommodate the proposed alterations by the Arup's details".
130. Whilst the emails and the note are not completely clear as to what Sisk was actually seeking, and Mr Jinadu rightly observed that Sisk was not stating in terms that it required C&C to accept the full existing structures suitability risk, nonetheless what they do undoubtedly show is that it was Sisk's position, as communicated to C&C, that the existing structures suitability risk issue was still live and required further discussion and redrafting.
131. By 19 April 2022 C&C had provided its response which, in relation to clause 2.42, stated: "A new clause 2.42.4 has been added - wording needs agreeing and including in the clarifications document". This appears to have been the first reference to what became the contract clarifications document which Sisk agreed on 20 April 2022 to issue for agreement. This was sent on 29 April 2022, with contract clarification two in what became its final agreed form, on the basis that the contract clarifications should be referenced in the relevant contract clauses and included as an appendix to the Employer's Requirements.
132. C&C's email of 4 May 2022 said that the contract clarifications document could be agreed but not in its current terms. This was not, therefore, an outright rejection of the proposed contract clarification two on the basis that this point had already been discussed and agreed in March 2022. On the same date an updated version of the schedule of amendments included as regards clause 2.42 the words "Clause agreed subject to agreement of ER's".
133. The travelling version sent on 4 May 2022 records C&C's comment, following a meeting, in relation to contract clarification two that it was "agreed subject to response from Arup". Sisk's later comment on 12 May 2022 being "Have we seen the Arup response yet?". On 13 May 2022 the further version had added a comment, obviously from C&C, saying "Chasing and will close out today. C&C issue for now".
134. The further correspondence leading up to the finalisation of the design and build contract, including the contract clarifications in their final form, does not shed any further light on what, if anything, Arup had agreed to provide, nor does it explain why the contract clarifications and the tender submission clarifications were both included in the excel worksheet.
135. In my judgment, the results of this exercise do not assist one way or another as regards the proper interpretation of the contract. It does, however, demonstrate that C&C's submission that the existing structures suitability issue was agreed in March 2022 and nothing changed thereafter is demonstrably wrong. After March 2022 clause 2.42.4 was agreed and included, with its express reference to the contract clarifications, so that from an objective basis it is apparent that things had moved on from March 2022. I accept that these exchanges do not make clear precisely what the parties both believed contract clarification two meant and, in particular, whether and if so to what extent it was different to the position as at March 2022, but that is not the point. The determination as to what the agreed position was as at the time of entry into the contract is, thus, a matter for the proper interpretation of the contract in accordance with conventional principles, as to which I have already made my finding.

H. The appropriate declaratory relief

136. The declarations as sought by Sisk appear broadly suitable to reflect my determination.
137. However, since there appears to be some dispute as the precise terms of the declarations as well as other consequential matters, I will deal with all such matters upon receipt of further submissions.

I. Postscript – breach of the confidentiality embargo in the draft judgment

138. Following circulation of the judgment in draft it emerged that the outcome had been notified to, and the draft had been shared with, representatives of C&C's agents, Arcadis and Cinns (both referred to above) as well as to its planning representatives. This emerged because representatives of Arcadis, who had not seen the judgment but had been informed that Sisk had "won", mentioned this to Sisk's representatives at a planned meeting when Sisk's representatives were unaware of such fact, because Sisk had complied with the embargo.
139. I asked for and have received a full explanation from C&C's solicitor as to how and why this happened, who has also clarified that the draft judgment had not been read by anyone outside C&C and confirmed that urgent steps had been taken to ensure that everyone was made fully aware of the embargo.
140. It appears that the principal reasons for the breach were, first, the failure by C&C's solicitor to appreciate (and, thus, advise C&C) that the draft could not be shared with its external representatives, even though they were within a confidentiality group formed by C&C and, second, to ensure that they were specifically made aware of the restrictions on sharing the draft judgment or the potentially serious consequences of so doing.
141. These restrictions and consequences ought by now to be well-known amongst the legal profession, especially given the guidance provided by Sir Geoffrey Vos, M.R. in R. (on the application of Counsel General for Wales) v Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 and the warning in that case (paragraph 31) that "in future, those who break embargoes can expect to find themselves the subject of contempt proceedings as envisaged in paragraph 2.8 of CPR PD40E".
142. However, as well as receiving this full explanation, I have also received a very full apology from the solicitor concerned as well as apologies for those within C&C who breached the embargo. The solicitor concerned has also offered to cut short a trip abroad to attend before me in person to reiterate his explanation and his apology in person if required. In the circumstances, I accept the explanation and apology and do not propose to take any further action.
143. Finally, and even though this is not raised by way of mitigation, I should also record that due to an error on my part the confidentiality warning which appeared at the top of the draft judgment was an out-of-date version which did not state explicitly, as does the current version, that: (a) "this is a draft judgment to which CPR Practice Direction 40E applies"; (b) "neither the draft itself nor its substance may be disclosed to any other person or made public in any way"; (c) "the parties must take all reasonable steps to ensure that it is kept confidential", that "as explained in Counsel General v. BEIS (No. 2) [2022] EWCA Civ 181, the draft judgment is only to be used to enable the parties to make suggestions for the correction of errors, prepare submissions on consequential matters and draft orders and to prepare themselves for the publication of the judgment"; and, finally, (d) "a breach of any of these obligations may be treated as a contempt of court". If it had done, I might not have been prepared to take such a lenient course.

Note 1    The design and construction of two new residential buildings, repairs and refurbishment of two listed mills and two further existing buildings together with external works and other associated works.    [Back]

Note 2    It appears that two issues were referred to the adjudicator, first ground conditions and second existing structures, but these proceedings are only concerned with the latter.    [Back]

Note 3    Referred to in the contract documents as a pendrive.    [Back]

Note 4    Cinns was C&C’s project representative and Employer’s Agent under the design and build contract.    [Back]

Note 5    This is usually an abbreviation for Pre-Construction Services Agreement and, in this context, is plainly a reference to the period of time preceding the entry into the design and build contract in which Sisk was – at least in C&C’s opinion – in a position to investigate and satisfy itself as to such matters.    [Back]

Note 6    I have not been addressed on this, and there is an exclusion at clause 6.8(b) which might be engaged.    [Back]

Note 7    This is only admissible where the contra proferentem principle is in play: Lewison at 3.55.    [Back]

Note 8    It may be said that this would have presented a logistical difficulty, in that it might have needed to have been printed out in landscape to capture all of its content. It is also unknown whether, if that had been done, it would have included column F or whether that would have been hidden, as it was in the electronic version.    [Back]

Note 9    C&C’s primary position is that it is clear and means what it says.    [Back]