How Will The Courts Make A Just And Equitable Apportionment Of Damages Under The Civil Liability (Contribution) Act?

In the case of Carillion JM Limited v Phi Group Ltd, [2011] EWHC 1379 (TCC), Mr Justice Akenhead had to consider the meaning of the "same damage" and a "just and equitable" contribution under the Civil Liability (Contribution) Act 1978.

The Facts

The case concerned the design and construction of a train servicing depot near Wembley Football Stadium (the "Works"). The depot was built between 2004 and 2006 as the stadium was being constructed. To create space for the depot, substantial excavations were undertaken to the clay ground which had the effect of leaving 70º and 80º slopes. These slopes became unstable both during and following completion of the Works.

In May 2004 Carillion JM Limited ("Carillion") engaged Robert West Consulting Limited Engineers ("RWC") as Consulting Engineer and Lead Consultant in respect of the overall Works. RWC's scope of work involved developing outline proposals into a fully detailed scheme for the depot. This included advising on further site investigations to verify the ground, providing working drawings and specifications and once construction commenced site visits and attendance at site meetings.

Phi Group Limited ("Phi") were formally engaged by Carillion in January 2005 as Carillion's specialist design and build contractor for the soil nailing works. This was work to restrain and stabilise the slopes around the excavation for the depot. There was no obligation on Phi to review the adequacy of the site investigation documents.

In January 2005, whilst the construction works were progressing, slips occurred in the upper levels of clay. Phi addressed the slips by undertaking remedial works. RWC was not involved in correspondence regarding these slips, although it was aware of them. Further more substantial slips occurred in October 2005. Phi prepared a report and remedial design, which was commented on by RWC.

Subsequent slope failure and settlement was reported shortly before Christmas 2006. Monitoring was undertaken and in August 2007 Carillion engaged an expert to prepare a report reviewing the design of the works. The report found that there was deep seated instability which had not been adequately accounted for in the deign calculations for the soil nailing works. It was the deep seated instability that formed the subject matter of the Court proceedings.

In November 2007, Carillion gave RWC and Phi notice of the potential claims against them. Carillion initially issued proceedings against Phi only on 23...