Barristers involved in long cases sometimes entertain themselves by challenging each other to use incongruous words and phrases in their submissions to the tribunal, writes Kim Franklin. The hard-pressed judge is then surprised by unlikely references to 'Agatha Christie', 'chocolate swiss roll' or 'nasturtiums', while the counsel in question collects their prize later, usually in the pub.
A recent high-profile Technology and Construction Court judgment reads as if the judge took these diversionary tactics to heart and incorporated the spoof references into his judgment.
Scattered through its 200 pages are such phrases as, 'signature arch', 'Sheikh Abdullah Al Rushaid', 'Project Trafalgar', 'Chinese Ministry smuggling operation' and 'Armageddon Plan'. These are not, however, the work of a fertile forensic imagination. They are all elements of the bumper bust-up between two construction giants with a national emblem at its centre. I am referring, of course, to Multiplex's dispute with Cleveland Bridge over the steelwork for the National Stadium at Wembley.
The steelwork contract, which was let in September 2002, was troubled almost from the start, with both parties blaming each other for delays and poor performance, notably with regard to the stadium's signature arch. In early 2004, the Cleveland Group's board, including its chairman, Sheikh Abdullah, met and hatched 'Project Trafalgar'. This was a four-point plan, which included stopping work on the grounds that Multiplex had repudiated the contract. At the same time, Multiplex was working on its 'Armageddon Plan', to replace Cleveland with another steelwork contractor.
While the parties manoeuvred, the on-site problems proliferated. The Chinese steelwork fabricators were unable to process part of the steel in time and raw steel had to be shipped back to China. This difficult operation was hampered by the Chinese authorities, who were puzzled by such large quantities of untouched steel travelling halfway around the world and back. Multiplex's man in Shanghai reported that the Chinese suspected a smuggling operation.
The parties attempted to resolve their differences in a supplemental agreement, just before the arch was raised at the end of June 2004. Multiplex seriously down-valued Cleveland's works in two certificates issued in July.
When Cleveland objected, Multiplex referred the dispute to adjudication. Cleveland asserted that Multiplex was in repudiatory breach of contract, so stopped work in August 2004 and both parties started court proceedings.
Mr Justice Jackson tried 10 preliminary issues, which he decided in a lengthy judgment comprising 16 parts. One of the central issues was whether Multiplex had repudiated the contract so as to entitle Cleveland to leave site. The Judge found that Multiplex ought to have consulted Cleveland before issuing the offending certificates, but that its failure to do so was not a repudiatory breach of contract. It was, he said, a strategy which was 'ruthless but lawful'. Cleveland was not, consequently, entitled to treat the subcontract as finished or to stop work. This is not the end of the story but on this occasion, it seems, Armageddon triumphed over Trafalgar.