THE SAGA OF THE

ROYAL BROMPTON HOSPITAL CASE:

THE RISK OF LITIGATION
By

Antony Edwards-Stuart QC1

The trustees of the Royal Brompton Hospital (RBH) sued the project managers, architects, and
mechanical & electrical engineers for a number of problems that arose during the construction of
the hospital which resulted in the main contractor being granted extensions of time to cover the full
period of the contract overrun (42 weeks) and led to arbitration proceedings between RBH and the
contractor. RBH paid the contractor some £5 million in respect of its claims for loss and expense
and then settled the contractor’s further claims in the arbitration for about £6 million.

RBH sought to recover those sums, or much of them, together with lost liquidated damages, from
the defendants. After a protracted history of interlocutory battles, the main issues of liability came
on for trial before HH Judge Richard Seymour QC in October 2000.

After a short period for reading the pleadings and principal experts reports, the case was opened
before Judge Seymour on 18/19 October. Very early on during the opening the judge indicated that
he was concerned about a number of aspects of RBH’s case, particularly in relation to the expert
evidence and causation. However, the opening was completed and the trial adjourned for a week to
allow the judge further reading time. When the trial resumed on 30 October the judge indicated that

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he was minded to strike out of his own motion most of the claims that RBH was advancing in that
sub-trial. There followed three days of argument, after which, on 2 November, the judge struck out
9 of the 12 heads of claim before him, leaving the remaining 3 to be tried during the ensuing few
weeks. Permission to appeal was refused. The 3 remaining claims involved alleged negligence by
the architects and project managers in relation to the grant of extensions of time (EOT), and a claim
against the M&E engineers in relation to late delivery of co-ordination drawings.

The EOT trial started the following week and continued until 28 November. In the meantime,
RBH’s junior counsel had to leave the trial in order to prepare a notice of appeal, which was
supported by a detailed skeleton argument and 4 ring binders of documents. RBH appealed against
the striking out of 7 of the 9 claims. The application for permission to appeal was dealt with very
speedily by the Court of Appeal, who gave RBH permission on 23 November. In the light of this
development, RBH applied unsuccessfully to have the claim against the M&E engineers for late
delivery of the drawings adjourned pending the outcome of the appeal against the striking out of
similar claims against the architects and project managers. The judge refused and ordered the
hearing of a preliminary issue on this claim, which he proceeded to hear and determine straight after
the end of the EOT claim. After 3 days of evidence and argument, the judge decided this issue
against RBH and then dismissed the claim.

The result of all this was that RBH succeeded to a small extent on the EOT claim against the
architects, but lost everything else.

The appeal against the strike out and the refusal to adjourn the claim for late delivery for the
drawings was heard over 4 days in February 2001. The Court of Appeal allowed the appeal and
reinstated all 8 claims, and indicated that they should be tried before a different judge. All the
defendants applied to the Court of Appeal to vary its judgment, but after further submissions and
argument, the applications were refused.

The re-trial of the issues of liability took place in June 2001, before HH Judge Humphrey LLoyd
QC. The trial finished at the end of July. Judgment was reserved. It was eventually delivered in
draft (over 200 pages) at the end of September 2002. RBH won 7 of the 8 claims struck out or
dismissed by Judge Seymour and reinstated by the Court of Appeal. It lost the claim against the

1
Leading Counsel for the RBH.
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architects for failing to ensure that the M&E engineers issued their drawings on time, but succeeded
against the project managers on the same claim (so the damages recoverable were not affected). It
also succeeded on two further small claims against the architects and project managers.

Damages, which (like everything else in this case) are bitterly contested, remain to be assessed at a
further hearing. Attempts to appeal against the judgment on liability are bound to follow.

In the meantime, the architects’ appeal to the House of Lords, against the striking out of their claim
for contribution against the main contractor, was heard in April 2002 and dismissed.

Quite apart from the enormous costs, stress and anxiety which this litigation has generated over the
past two years, three particular features call for comment in relation to the hazards and risks of
litigation.

First, in the course of the trial two witnesses, one of them the principal expert for the M&E
engineers, were unable to give evidence as a result of ill health brought about by the stress of the
case. In addition, RBH had to call its principal M&E expert’s assistant, because the principal M&E
expert had undergone heart by-pass surgery earlier in the year at about the time of the hearing of the
appeal.

Second, the two judges who heard evidence from three witnesses who gave evidence at each of the
trials reached very different conclusions about the quality of that evidence. Most striking was the
case of the evidence given by a former partner of the M&E engineers. The first judge found him to
be “an impressive and careful witness”, whose evidence he accepted “without reservation on all
matters about which he gave evidence”. The second judge thought differently. He said that this
witness was rightly described as “partisan and argumentative” so that he could not “place much
store by his evidence”. The judge rejected his evidence on a number of specific points, and even
went so far as to say that it made him “wonder why RBH’s case on the aspect of liability was being
defended” by the M&E engineers.

The final irony is that HH Judge Humphrey LLoyd QC criticised the report of the M&E engineers’
principal expert (who did not give evidence) on the grounds that, unlike the work of RBH’s experts,
it did not provide enough reasoning to support the conclusion that the co-ordination drawings were

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prepared with all reasonable skill, care and diligence. It was for lack of such reasoning in RBH’s
M&E expert’s report that the claim was struck out in the first place by HH Judge Seymour QC.

November 2002

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