On 14 July 2017 Mr Justice Stuart-Smith handed down Judgment in 125 OBS (NOMINEES1) v LEND LEASE CONSTRUCTION (EUROPE) LTD & OTHERS [2017] EWHC 25 (TCC) in favour of 125 OBS. 

Anneliese Day QC successfully argued that Lend Lease was contractually liable for presence of volatile nickel sulphide within the glass which had not been adequately remedied by heat soaking.  The Judge found that the glazing installed on 125 Old Broad Street should have been heat soaked in accordance with the relevant European standard, but that there was “compelling evidence that 35-40% of the glass was not”, adding that “failure to heat soak 35% of the glass is a serious breach of contract.”

Mr Justice Stuart-Smith further held that, in addition to the obligation to heat soak, the contract also imposed separate and discrete additional obligations, including that the glass was to have both a design life and a service life of 30 years.  Lend Lease’s argument that the risk of failures had been accepted by 125 OBS was robustly rejected, and the Project’s failings described as “disastrous”. 

The liability expert acting for Lend Lease was heavily criticised with the Judge commenting: “by the end of the trial it remained quite unclear how he could, consistently with his duties to the Court, have failed to make plain his clear understanding that some of the documentation was fabricated and that……the documentation as a whole (on which he commented extensively) did not support his client’s case”.

The decision to reclad the 26 storey tower with a curtain walling system of storey-height, framed glass panes was found to be reasonable.  125 OBS was also held to be entitled to recover other costs such as loss of rental, management costs, and costs paid to third parties arising out of damage to the building and local businesses. 

A full copy of the judgment is available here.

Anneliese Day QC of Fountain Court Chambers, led Calum Lamont of Keating Chambers; instructed by Daniel Preston of Reynolds Porter Chamberlain for the Claimants 125 OBS.