Article

BS5930:2015 – the new version of the Standard on Ground Investigation is now available

30th Jul 2015 - by Ann-Marie Casserly

Tags: BS5930 Code of practice ground investigation

Written by David Norbury – Independent Consultant and Chair of the Revision Panel

BS5930 has underpinned ground investigation practice in the UK and abroad since its original publication in 1981. The original version broke new ground by standardising for the first time many of the aspects of an investigation and was published at about the same time as international guidance from ISRM and IAEG on similar themes. This standard always had wider coverage by including guidance on selection of drilling methods, and covering field and laboratory tests.

The subsequent 1999 revision was an update to reflect the ongoing evolution of investigation methods. Since then there have been two major amendments 2007 and 2010) to incorporate the requirements of EN standards related to Eurocodes, specifically the standards associated with EN1997-2, in sampling, testing and soil and rock description. BSI rules do not permit additional amendments, and the decision was taken to undertake a full revision not only to include additional requirements relating to the Eurocodes but also to ensure that current best practice was incorporated throughout the document.

BS 5930:2015 presents an update on the requirements for the investigation of sites in order to assess their suitability for construction and to identify the characteristics of a site that affect the design and construction of the project. The Standard emphasises the importance of the evolving ground model and that ground investigation is not necessarily a linear process. It also considers related issues including the environment and the security of adjacent land and property.

According to the drafting panel, BS 5930 should be used on all investigations to help ensure:

geotechnical design and ground investigations are achieving the best results;
UK practitioners are carrying out their work in ground investigation and geotechnical design in accordance with the latest EN and ISO standards;
UK practitioners can export their skills to other countries where the same international standards are in use;
the most appropriate equipment is deployed to carry out ground investigation from selection of exploratory techniques, to methods of sampling, testing and measurement;
complete, accurate and informative description of the soils and rocks encountered; and
complete reporting of the investigation for use by others in the design chain whether by paper, pdf and digital data transfer formats.

Apart from changing the title from ‘site’ to ‘ground’ investigations, readers might not see much change in the content. However, a lot of effort has been input to update best and current practice, accommodate EN ISO standards and to cut repetition. Not least, the structure of the content has been significantly revised and the Section headings of the revised standard are listed below. Several of these sections have been raised from clause to section level, as denoted by an asterisk below, to better reflect their importance to the investigation process.

Preliminary considerations
Desk studies and field reconnaissance**
Planning ground investigations
Field work
Geophysical field investigations**
Description of soils and rocks
Field tests
Field instrumentation**
Laboratory tests on samples
Reports and interpretation
Review during and after construction

The schedule of Annexes supporting the main text is as follows:

National safety legislation**
General information required for desk study
Sources of information
Notes on field reconnaissance**
Detailed information for design and construction
Ground Investigation in ground affected by voids *
Photographic records**
Integrated investigations**

The revision process started in late 2011 and was completed in late 2014 when the draft for public comment was issued. The pubic certainly commented with over 1000 comments being received – the largest number ever seen by BSI. A period of intense work in early 2015 saw these comments reviewed and incorporated ready for publication in July 2015. The four year period to revise such a large standard is testament to a lot of hard work by the members of the Panel listed here for the record:

David Norbury representing the Geological Society of London
David Entwisle representing AGS
Dick Gosling representing British Drilling Association
John Powell present as Chair of B/526/3
Andrew Ridley co-opted to writ on instrumentation
Mike Smith present to guide us on integrated investigations
Graham Taylor representing British Geotechnical Association

and with significant contributions from George Tuckwell on geophysics and Tom Phillips on safety, and not forgetting our patient editor Mary Groom.

Download your copy here.

Article Safety

Applying 2015 CDM Regulations to Ground Investigation

1st Jul 2015 - by Ann-Marie Casserly

Tags: AGS CDM 2015 CGL Construction Design Management ground investigation safety

Construction Design Management (CDM) updated their regulations earlier in the year to further improve health and safety across the construction industry and manage risk accordingly.

Is your Company up to speed with the new changes? Do you know how the new regulations affect ground investigation? Jo Strange, Technical Director of CGL and an active member of the AGS Loss Prevention Working Group, has written an insightful article in this month’s Ground Engineering magazine on Applying 2015 CDM regulations to ground investigation. To read the article in its entirety, please click here

What are your thoughts on the new CDM regulations? Share your opinion on the AGS LinkedIn Group

The AGS Safety Working will be issuing guidance on CDM shortly, watch this space!

Article

WHY SHOULD YOU BE AT GEOTECHNICA 2015?

23rd Jun 2015 - by Ann-Marie Casserly

Article written by Julian Lovell, Chair of the AGS Safety Working Group and Managing Director of Equipe.

Over the last 6 years, Geotechnica has become the biggest and best geotechnically-dedicated conference and exhibition that the UK has to offer. From humble beginnings in marquees in a field on The Upton Estate in rural Oxfordshire, to the excellent purpose-built facilities of the Warwickshire Exhibition Centre, Geotechnica has become a staple in any and all geotechnical stakeholder’s calendars.
In this issue of theGeotechnica, we look forward to this year’s Geotechnica and outline exactly why you should be attending 2015’s event. Whether it is to attend the always excellently received geotechnical conference featuring speakers from high profile clients such as HS2 Ltd and Network Rail; discover the latest product developments and innovations; meet prospective clients, contractors and suppliers, or to catch up with friends new and old – Geotechnica offers something for everyone.

Growth in the sector – tackling the challenges
The Geotechnica 2015 conference and exhibition provides a unique opportunity for the geotechnical industry, its clients and the supply chain, to discuss how best to meet the challenges of the UK construction’s growing order book.

The dramatic rise in UK infrastructure and building projects following the recession has created skills shortages across the construction industry. For the geotechnical sector, this upturn in work presents significant challenges. High Speed 2, for example, is set to swallow almost 40% of the sector’s capacity when ground investigations start later this year.

The urgent need to tackle the issues of capacity and skills, while maintaining quality and safety standards, will be the focus of Geotechnica 2015. On the first morning of the event the conference will bring clients, consultants, contractors, suppliers and manufacturers together to discuss how best to meet the challenges ahead.

The morning session will be chaired by Professor David Norbury who will provide critical information of the soon to be published BS 5930 revision. Jonathan Gammon, High Speed 2’s Head of Ground Investigations, and Mike Brown from Network Rail, will then outline work plans, plus their needs and expectations. The talks will not only outline current requirements but the Client’s will also discuss future requirements and aspirations and ask how the Community can meet these.

Remote monitoring advances
The Wednesday afternoon at the geotechnical conference will see a series of presentations looking at how the field instrumentation is advancing and how emerging technologies can be used to efficiently monitor geotechnical structures remotely. The session will look at a few of these technologies but also discuss how the data can be used more efficiently and possibly in the future be shared with the Community.

Talks from Dr Andrew Ridley of Geotechnical Observations and Professor Neil Dixon of Loughborough University will head up the session, with case studies and technical discussions from Dr David Gunn and Dr Jonathan Chambers of the BGS. Short presentations from Martin Clegg of Geosense, Heba Bevan of Utterberry, James Preston of Monitoring Optics and Roger Hazelden of TRW Conekt will round up the day’s talks with insights into the emerging technologies which are likely to take the industry by storm.

Health and Safety Updates
Over the last 12 months, we have all been discussing forthcoming changes to the Construction Design and Management Regulations. These have now been laid before parliament and came into effect on the 6th of April earlier in the year. On the Thursday morning of the conference there will also be a session sponsored by the British Drilling Association on health and safety, with discussions on changes brought about by the new CDM 2015 Regulations lead by John Underwood, Construction Inspector at the Health and Safety Executive.

The CDM 2015 regulations have been discussed at length in theGeotechnica in the last few issues, however Geotechnica 2015 will provide an opportunity for contractors to hear directly from the HSE on how these new regulations will directly affect day-to-day tasks on working sites.

Other topics discussed on the Thursday morning include the rising issue of asbestos in soil (also covered in Issue 40 of the magazine by Derwentside Environmental Testing Services’ Hazel Davidson), with a presentation from expert Seamus Lefroy-Brooks, Managing Director of LBH Wembley.

Finally there is the exciting news of the re-launch of the BDA Audit which has recently been revised in order to improve levels of assessment and competency which will complement the launch of a Level III NVQ for Land Drilling planned later this year. Delivering this update will be Peter Redford who is a director of BDA and chaired the working group which carried out the review of the auditing process. He will present these changes to attendees at Geotechnica 2015, outlining the changes to non-conformance, an updated and digitised audit format and alteration of base-rate auditing fees.

AGS Data efficiencies
The final conference session is sponsored by AGS and will be focussed on digital (AGS) data and how it can help to make organisations more efficient. The afternoon of presentations and discussions offers engineers and clients an opportunity to learn how others are using digital data and the AGS Data Format for managing geotechnical information within their organisations. The session will consist of a series of inspirational and practical presentations with plenty of discussion time that will help you make better use of the AGS Data Format.

Whether you are; an experienced user of AGS Data, someone wanting to learn more about using or specifying AGS Data, or an early-career engineer looking for an introduction to data management, this afternoon will provide you with a valuable learning opportunity.

Speakers in this session include Chairman of the AGS Data Management Working Group Jackie Bland, General Manager of Ground Technology Services Ben Armstrong, Simon Miles of Atkins, and also Dr Roger Chandler, Managing Director of Keynetix.

Each 30 minute session consists of a 15 minute practical application presentation by the speaker(s) followed by a panel and audience discussion about the topics with advice from the AGS Data Management Committee and other practitioners.

This session is a must for any handlers of AGS Data, and also for anyone wishing to gain a greater grasp of what AGS Data can offer you in terms of improving your organisations efficiency from site to final report.

Latest product innovations – demonstrations and launches
One way the geotechnical sector can meet the increasingly growing demand is by improving efficiency through innovation, a theme running through the two days at Geotechnica, both at the conference and also at the exhibition. Conference sessions on advances in digital data capture and remote monitoring on the Wednesday afternoon will be complemented by product launches and live demonstrations in the exhibition area running throughout both days of the event.

New product launches are due from a number of companies including two large rig manufacturers. Firstly Geotechnica 2015’s Gold Sponsors Casagrande UK will be launching the new C5XP, as well as a new vibro-rotary head by Eurodrill. Not to miss out on the rig launch party, Rockbit UK will be launching the new Massenza MI 3 and a new Wildbore De-sander unit and EK bag system, as well as demonstrating the Pagani CPTu penetrometer throughout both days on request. The Equipe Group will also be officially launching there SAFER-G Sensor-based rotary rig guarding system to the UK market, as well as a new KeyLogbook update release.
The laboratories present at Geotechnica will also be getting in on the act, with Derwentside Environmental Testing Services introducing there new asbestos in soil test – the fibre release test. ALS Environmental will also be demonstrating some of their OnSite tools including XRF, UVF and PetroFLAG.

The Geotechnical Academy
The Geotechnical Academy will again be at Geotechnica to demonstrate how it provides a unique learning experience for young geo-professionals. The training is designed to be fundamentally vocational, with many opportunities throughout the modules to participate in practical activities such as rig audits, insitu testing, laboratory testing, site visits and production of a ground model. An important aspect of The Geotechnical Academy is to allow delegates to gain knowledge through a shared learning experience with delegates from different facets of the geotechnical industry. We frequently bring together main contractors, specialist contractors and geo-environmental and geotechnical consultants, all with very different experiences of the industry.

This year at Geotechnica, The Geotechnical Academy stand will perform the traditional service of providing information. Academy staff will be there to discuss module content and practical activities and to welcome new enquiries. However, in addition we will also be presenting the new Geotechnical Academy Conference on Thursday 9th July. This will be an afternoon conference session offering an innovative learning experience for all geo-professionals as well as providing an opportunity to experience first-hand the type of experience delegates can expect if they attend The Geotechnical Academy. The event is being supported by Alcontrol, Lankelma, Keynetix, Equipe and Geotechnical Engineering Ltd who, along with other companies, all contribute to individual Academy modules throughout the year.
Come along and experience The Geotechnical Academy Conference on Thursday 9th July and contribute to enabling your geo-professionals to provide a quality service to the construction industry.
Packed exhibition line-up

The exhibition line-up for this year’s event is stellar. Geotechnica has always boasted the most varied and robust line-up of exhibitors in the UK, however the offering in 2015 may be the best yet. Companies from all areas and corners of the industry will be represented, with the very best in geophysics, ground investigation specialists, civil engineering, environmental and geotechnical laboratories, drilling rig, plant and equipment suppliers, instrumentation and geothermal specialists all out to impress the hundreds of attendees.

Geotechnica 2015 will be held on 8th and 9th July at the Warwickshire Exhibition Centre, Royal Leamington Spa. To register for your free place and for more information, visit www.geotechnica.co.uk; follow us on Twitter @equipegroup and visit the Equipe Group LinkedIn page.

Article Safety

Construction Design & Management Regulations 2015 – implementation

23rd Jun 2015 - by Ann-Marie Casserly

Tags: AGS CDM 2015 construction Equipe HSE RPA Safety Services

Article written by Tom Phillips, RPA Safety Services and Julian Lovell, Chair of AGS Safety Working Group and Managing Director of Equipe.

CDM2015 came into effect on the 6th of April 2015 and duty holders within the geotechnical sector are starting to grapple with the reality of implementation. With an increased emphasis on Client responsibilities, in an industry sector where the Client is rarely directly involved in the ground investigation phase, questions about how the regulations will be applied are being asked.

In conversation with the Health and Safety Executive, Tom Phillips of RPA Safety Services and Julian Lovell, Managing Director of Equipe and Chair of the AGS Safety Working Group attempt to clarify some of the questions consultants and contractors are raising.

Q. The definition of ‘construction’ in regulation 1, excludes site survey and in many cases our clients see ground investigation as site survey. Could you clarify the limits of site survey?

Site survey is restricted to non-intrusive works so taking levels, making measurements, site walkovers, gas monitoring and visually examining structures for faults would all be typical examples. If the works involve penetrative works, even with hand tools, the work is classed as construction and the regulations apply.

We are keen to stress though, that the regulations should be applied proportionally to the level of risk involved. A shallow, hand dug trial hole will require minimal paperwork in terms of a construction phase plan, as the risk is low, but duty holders will still need to consider the risks associated with such things as underground services, contaminants, ground stability, preventing falls into the excavation and they must plan how the work will be carried out, kept safe and made good. In many cases, simple repetitive work will be based on standard company procedures but these will need tailoring for the site and locality in question and the prevailing conditions.

Q. Consultants and contractors are finding it difficult to get clients to accept and fulfil their duties under regulation 15 (1), which states: ‘A contractor must not carry out construction work in relation to a project unless satisfied that the client is aware of the duties owed by the client under these Regulations.’ In many cases they are not employed directly by the client and have no contact with them at all.

To what extent does this prevent contractors from starting work and will they be held liable for client’s failures to make the correct appointments and satisfy their duties?

The regulations do not prevent geotechnical contractors working, even if the client has not fully complied with their duties. Key for the contractor, is to ensure they have made the client aware of the client’s duties under CDM. This can be done as part of the tendering process, or following appointment.

In such instances, the contractor still needs to make wider arrangements to manage the site for the duration of their attendance (appropriate to the role they are carrying out) despite a lack of formal appointment.

The contractor should therefore ensure the site is secure, ensure suitable welfare arrangements are in place and comply fully with their part 4 duties under the regulations. They should also prepare (or contribute to an existing) Construction Phase Plan which will deal with how they intend to arrange the work and how they will manage foreseeable hazards both at and adjacent to the site.

The construction phase plan should also identify any additional information that the contractor needs before starting work. If the client is not able to provide that information (e.g. services location, intrusive asbestos survey, ordnance assessment, etc.) then the contractor should arrange with the client for the work to be carried out as a separate part of the contractor’s contract.

Where the contractor is the main contractor on all or part of the site they should manage all work in the area they are responsible for unless a principal contractor is appointed and active. Where the contractor carries out design work (e.g. temporary works including perimeter fencing, arranging traffic management routes, ground conditions assessment and alterations, excavation support arrangements, etc.) they should ensure they follow the principle of avoid the hazard or use a suitable control measure to minimise risk.

Q. When a geotechnical contractor is appointed as Principal Contractor (PC) or Principal Designer (PD), in the early stages of a GI phase, or they pick up those duties by default, is there a danger they could be deemed PC and PD for subsequent phases?

Absolutely. Without clear arrangements to the contrary, there is every danger that a geotechnical contractor could be assumed to be responsible for following phases of works. It is therefore important that where a geotechnical contractor is appointed, or by default is expected to carry out the duties of the Principal Contractor and Principal Designer (a requirement on any project where there is likely to be more than one contractor), they clearly limit their role to their phase of works only. This will include limiting the Construction Phase Plan to the geotechnical phase. Where the existing contract paperwork is not clear on this issue the contractor should write to their client to confirm the extent of the contractor’s role.

Q. Regulation 2 defines a contractor as ‘any person (including a non-domestic client) who, in the course or furtherance of a business, carries out, manages or controls construction work’. Does this definition mean consultants may be classed as contractors?

The duty holder ‘contractor’ relates to those who: determine the manner in which the work is being done (this may also include a design element so they may hold dual roles), provide supervision or engage other contractors. This can include ‘consultancies’ in many instances.

As an example, where a consultant engages a drilling contractor and determines the nature and type of works or supplies supervision, they would both be deemed contractors and it will be the consultancy’s responsibility to ensure the client is aware of their duties. The client would then need to make the necessary appointments. Where a domestic client is involved, the consultancy (as a contractor) may be deemed to be principal contractor and principal designer by default, even if the client fails to make formal appointments. Where a commercial client is involved, any failure to appoint will result in the client carrying the role of principal designer and/or principal contractor.

How AGS Data Makes Organisations More Eﬃcient?

23rd Jun 2015 - by Caroline Kratz

Tags: AGS data format Geotechnica

A series of short presentations about advances in the use of capturing and using Geotechnical Data from site, through the laboratories to report and beyond. The talks will discuss the use of AGS through the process and will include a number of case studies to show how it works for real projects.

For further information and to register to the event, please visit www.equipegroup.com/services/geotechnica/geotechnica.html

Article Executive

Chairman’s Address

28th Apr 2015 - by Caroline Kratz

Tags: AGS Ken Marsh Matthew Baldwin Seamus Lefroy-Brooks

AGS Members Day is always an enjoyable and informative event, which manages to balance the AGS governance issues with topical presentations form invited speakers. Biannually, Members Day also sees the formal election and taking up of office for the incoming chairman. This year I took over from Seamus Lefroy-Brooks, whose two year tenure seems to have flown by! I would like to take this opportunity on behalf of both the AGS committee and the wider membership, to thank Seamus for all the hard work he has put in. For the Chairperson there is a lot of unseen work that goes on behind the scenes, in order to ensure that both main committee and the various subcommittees function effectively.

As a trade organisation, the AGS has a duty to its membership, to keep a weather eye on a variety of issues that might impact on the membership. Because the AGS successfully represents contractors, consultants, laboratories as well as suppliers, the range of issues is broad and includes technical, health and safety and commercial ones to name but a few.

During periods of economic downturn, it would be easy to sacrifice some of the aims of the AGS, ie to promote best practice and to provide guidance for members. I am pleased to say however that under the stewardship of the last two Chairmen (Seamus and Ken Marsh), this has not been allowed to happen, and now as the industry faces a period of relative economic buoyancy, the key will be to look afresh at issues that face the industry.

As I said at Members Day, I am particularly keen to ensure that the AGS becomes relevant and accessible to the whole geo-environmental community. By this I mean that we need to engage with students, graduates and young company employees as well as those companies and individuals who have been members for a number of years. We must better disseminate the great pool of knowledge and experience that sits with the AGS committee and subcommittee members, and make it available to all.

The redesigned website will play a key part in this process, as will better marketing of the AGS throughout the industry. We will be looking at the accessibility of AGS publications and guidance notes etc, to see how we can better get information out to those practitioners who need it. The committee has also received approaches from overseas organisations wishing to follow the AGS ‘model’ and this is something we will look at. It says a lot about the AGS, when comparable industry sectors in other countries think that our ‘model’ as a trade organisation is worth adopting!

So in summary there will be no let-up in the work that the AGS does on behalf of members. As we strive to make the AGS a better knowledge centre, we will be canvassing thoughts from members to ensure that we address issues that are of concern and that are relevant to very day geo-environmental practice. I am looking forward to working with both committee members as well as the membership at large over the next two years.

Matthew Baldwin

Chairman of the AGS

April 2015

Article Contaminated Land Loss Prevention

Asbestos PII Update

25th Mar 2015 - by Caroline Kratz

Tags: AGS Asbestos bodily injury claims collateral Griffiths & Armour Professional Risks law PII Policy professional indemnity insurance

The subject of asbestos cover is one that has been in the spotlight for many years since the restriction (and in some cases the complete withdrawal) of professional indemnity insurance (PII) cover for asbestos risks in 2002/03.

Wider cover is now available in the PII market to those consultancy firms that might inadvertently come across asbestos in the normal course of their activities, although it will not usually be offered to those firms undertaking asbestos inspections.

In the past, cover has generally only been available for negligence claims in respect of the direct cost of remediation or diminution in value of property due to the presence of asbestos. Any indirect costs, such as consequential delay costs, would have been excluded. With a few exceptions, cover can now be obtained for any asbestos related negligence claims regardless of whether the loss in question relates directly to remediation or diminution in value, and cover will therefore extend to cover economic and consequential losses. The exceptions relate to bodily injury claims and claims relating to property located outside the United Kingdom (including the Channel Islands or the Isle of Man) and the Republic of Ireland, which continue to be generally excluded.

Those firms undertaking ‘management’ and ‘refurbishment or demolition’ surveys as described in the Health and Safety Executive guide HSG264 (previously known as type I, II or III asbestos surveys) or similar surveys are unlikely to qualify for the wider cover and will need to negotiate specific cover with their insurers or approach a specialist provider. Consultants with UKAS accreditation should note that UKAS requires Accredited Bodies to carry asbestos cover for bodily injury claims and this is available to such bodies via specialist markets. If you require assistance with this, then please do not hesitate to contact Griffiths & Armour using the contact details below.

For those consultants who may appoint sub-consultants to undertake asbestos inspections on their behalf it is worth remembering that, in the eyes of the law, you are fully responsible for their actions and any claim that arises from work they may have undertaken is likely to expose the consultant’s PII policy in the first instance. If you are appointing third parties to undertake asbestos inspections then you should check the terms of your PII policy to ensure that you are adequately protected.

The scope of cover provided under PII policies can vary considerably and if you are in any doubt about the extent of asbestos cover under your own PII policy you should consult with your broker for further advice.

Griffiths & Armour Professional Risks
0151 600 2071

Article Loss Prevention

When is a financial cap likely to be an effective cap?

17th Feb 2015 - by Ciaran Jennings

Elvanite Full Circle Limited v AMEC Earth & Environmental (UK) Ltd [2013] EWHC 1191

Article by Sarah McNeill, Griffiths & Armour Professional Risks

The decision in Ampleforth Abbey Trust v Turner & Townsend was reviewed in a previous newsletter under the heading ‘when is a financial cap not a cap?’ as an example of a consultant’s cap on liability being unenforceable. Is that always going to be the case? Should consultants cease to raise the subject of liability caps when negotiating contract terms? Certainly not. The more recent decision in Elvanite reflects much more positively the very real financial value of limitation and exclusion clauses – provided that they successfully satisfy the applicable tests.

Elvanite, a demolition and recycling contractor, brought a claim against AMEC, its professional consultant, for breach of contract. AMEC were alleged to have failed to submit a planning application before the deadline stipulated in their services agreement.

A buyer had agreed to purchase the site from Elvanite subject to a condition that planning permission had been obtained prior to the date of transfer. Elvanite brought a claim against AMEC for consequential losses when the purchaser pulled out of the proposed deal due to planning permission not having been obtained within the expected period. AMEC denied the allegations and counterclaimed against Elvanite for its outstanding professional fees.

At trial the Judge found against Elvanite on the facts, and from that point onwards the above clauses were unimportant. However, he thenhelpfully went on to discuss how those clauses fared under UCTA in the given circumstances and whether therefore they would have been enforceable in principle.

The Defence

Amongst other arguments in its defence, AMEC sought to rely on various exclusion clauses included in its standard terms and conditions, namely that:

AMEC would not be responsible for any consequential, indirect or incidental losses.
The total liability of AMEC would be limited to the total fee received by AMEC or £50,000, whichever was less.
All claims would be deemed to have been relinquished unless ‘filed’ within one year of the substantial completion of the Services.

Elvanite contended that that these clauses were ‘unreasonable’ and therefore unenforceable under the Unfair Contract Terms Act 1977 (UCTA).

At trial the Judge found against Elvanite on the facts, and from that point onwards the above clauses were unimportant. However, he then helpfully went on to discuss how those clauses fared under UCTA in the given circumstances and whether therefore they would have been enforceable in principle.

Test of Reasonableness

The court considered whether the clauses were in fact ’fair and reasonable’ pursuant to section 11(1) and Schedule 2 of UCTA. Mr Justice Coulson took as his starting point the statement of Chadwick LJ in Watford Electronics v Sanderson CFL Limited[1] that the court should not interfere in an agreement negotiated by ‘experienced businessmen representing substantial companies of equal bargaining power’. This he believed was ‘the best judge on the question whether the terms of the agreement are reasonable’.

Here both parties were indeed ‘relatively substantial’. Whilst AMEC was a subsidiary of a much larger group of companies, it was held that this did not make any difference to the parties’ commercial standing. It was of critical importance that both parties were of equal bargaining power and that there was no evidence that Elvanite had not known what it was agreeing to – more than once they had been sent AMEC’s terms and conditions and had raised no objections. (This is an important difference to the situation in Ampleforth Abbey Trust v Turner & Townsend (see below) where a change to the consultant’s standard terms and conditions imposing a new limitation clause was not brought to the client’s attention.)

As a result, all three limitation clauses were found to be ‘reasonable’ for the purposes of UCTA.

INDIRECT/CONSEQUENTIAL LOSS EXCLUSION

AMEC argued that the loss of profit claimed by Elvanite constituted consequential or indirect damage and that the losses claimed by Elvanite were therefore excluded.

Coulson J considered that ‘indirect damages’ referred to losses recoverable under the second limb[1] of Hadley v Baxendale[1]. AMEC had undertaken to use reasonable skill and care in its completion of the planning application for Elvanite, and therefore any loss of profit was indirect because it was conditional upon Elvanite having agreed to sell the site to a third party on specific terms.

AMEC was not aware that Elvanite was the owner of the site until after the appointment had been concluded. For that reason, the court considered that on this basis, it was also considered that the indirect losses claimed by Elvanite would have been too remote to be recoverable regardless of the exclusion clause.

FINANCIAL CAP ON LIABILITY

AMEC argued that it had been paid £13,987 for its services and therefore that its liability was limited to this sum.

The court acknowledged that it is common for companies providing professional services to limit their liability by reference to pre-determined sums, usually the value of the fee or the limit of any relevant insurance policy. Coulson J referred to the decision in Ampleforth Abbey Trust v Turner and Townsend [2012][1] in which a limit of liability was held to be unreasonable on the basis of the ‘stark disparity’ between the purported £111,000 liability cap and the PI insurance requirement of £10M. AMEC on the other hand were not bound by any such insurance obligation in this case.

The court, therefore, concluded that the term was not unreasonable and that AMEC’s total liability would not have exceeded the amount paid by Elvanite for the services.

TIME LIMITATION

AMEC also sought to rely on the clause stating that all claims by Elvanite would be deemed to have been relinquished unless filed within one year after the subsequent completion of the Services.

Coulson J observed that ‘the parties to a contract can vary the statutory six year limitation period’, reinforcing the decision in Inframatrix Investments Limited v Dean Construction Limited[1] that the statutory rules can be superseded by agreement.

However, AMEC nearly fell foul of rather loose drafting in this clause. They no doubt had intended to bar any proceedings issued at court more than one year after they had substantially completed their services – but this clause referred to ‘filing’, which is an unusual word to find in this context. The Judge determined that since claims are issued and not ‘filed’ this must have been a reference to serving a formal Letter of Claim. Elvanite had sent a letter notifying

AMEC of its claim within the limitation period, but the letter did not comply with the Pre-Action Protocol. Accordingly Elvanite’s claim was deemed to have been ‘relinquished’ under the terms of this provision.

Conclusions

While technically ‘obiter’ and thus not binding, the comments of Coulson J are a useful guide as to how the courts approach exclusion and limitation clauses and are a reminder that when clearly and carefully drafted a consultant can effectively rely upon them.

What is especially important to note here was the significance placed on the equal bargaining power of each of the parties and the court’s reluctance to intervene with contractual limitations when this is the case. Where the parties are on an equal commercial footing limitation provisions are much more likely to be regarded by a court as being reasonable for the purposes of UCTA than in cases where one party is clearly in a dominant commercial position over the other.

Both Ampleforth Abbey and Elvanite were decided on their specific facts and do not create new law. They are, however, useful reminders of long-standing principles of contractual formation and interpretation, particularly the need for clear and unambiguous language and the need to bring any unusual or onerous clauses to the other party’s attention.

On a final note, it is also worth remembering that having successfully negotiated a liability cap in an agreement, it is then critically important to check the rest of the document for potentially inconsistent terms.

References

[2001] 1 All ER (Comm) 696
Damages for breach of contract are recoverable under two limbs under Hadley v Baxendale: (i) Damages which may fairly and reasonably be considered as arising naturally from the breach; and (ii) Damages which may reasonably be supposed to have been in the contemplation of the parties at the time that the contract was formed as being the likely result of breach
[1854] EWHC Exch J70
The Trustees of Ampleforth Abbey Trust v Turner & Townsend Project Management Limited [2012] EWHC 2137 (TCC)
[2012] EWCA Civ 64

Article

AGS Members’ Day – March 2015

17th Feb 2015 - by Ciaran Jennings

Tags: AGM Asbestos consultants HS2 lab testing March 2015 members day

9.30am – 16.30pm, Wednesday 18th March 2015

Royal Geological Society,
1 Kensington Gore, London SW7 2AR

AGS Members day incorporates our AGM and will feature a number of presentations on the issues that are front of mind for the geotechnical and geoenvironmental industry.

This year’s programme includes a panel discussion on Asbestos and the issues it raises within the practice area of managing the risks for contaminated land. Presentations will also be given on the “Ground Investigation Requirements for HS2” and “Educating Consultants on Laboratory Testing”.

The full programme can be download here – AGS Members’ Day programe A4 FINAL

Article Loss Prevention

Depositing geotechnical records with the BGS

17th Feb 2015 - by Ciaran Jennings

Tags: BGS borehole copyright digital files exploration GeoIndex geological mineral National Geoscience Data Centre NGDC open-file records

The British Geological Survey (BGS) collects borehole records, borehole materials and site investigation reports which are maintained by the National Geoscience Data Centre (NGDC). The Survey has statutory rights of access to information and samples from certain mineral exploration and water supply boreholes. The BGS also welcomes donations of information from anywhere in Great Britain in various formats, including analogue, digital and material collections. If digital files are available these are preferred, and in particular in AGS format data.

The AGS supports the aims of the BGS and encourages its members and their clients to donate their geological records, particularly where in AGS data transfer format in order to propagate its use, to the benefit of member companies, industry and for the general public good.

Most of the collections are part of the public record and are made available through a not-for-profit cost enquiry service, and scanned copies of borehole logs can be accessed for free using the BGS website’s GeoIndex. If specified on the BGS standard deposition form, data can be held as commercial-in-confidence for 4 years before it becomes open-file. Special arrangements need to be made with the BGS for longer periods.

It is therefore important that the ownership of the information itself and that of the copyright and other intellectual property rights must be clearly established before data is deposited, and the AGS recommends that members and their clients discuss this issue at an early stage in the commission. It is recommended that members ask their clients to confirm in writing that the member can donate the records to the BGS at the end of the commission. Alternatively, members could include in their standard conditions a clause stating the information will be donated to the BGS on the due date for payment of their final invoice unless otherwise informed in writing by their client.

The BGS offers advice and guidance about clearing intellectual property rights including copyright. Further information can be obtained from the BGS website www.bgs.ac.uk

The Loss Prevention Working Group of the AGS is collecting the experiences, comments and views of its members and their clients on the submission of information to, or the requesting of information from, the BGS and whether they have submitted or requested information in AGS format. Please contact the AGS at ags@ags.org.uk.

Article Business Practice

Work permits for Non-UK and EU Ground Engineers

19th Jan 2015 - by Ciaran Jennings

Tags: Engineering EU Ground Forum Recruitment SOL Specialist Occupations List UK

Although there are indications that the supply of UK and EU graduate engineers is increasing, there are still sufficient hard to fill vacancies to indicate a continuing shortage of ground engineers. Although immigration currently has a high press and political profile, it is worth noting that where the Home Office acknowledges that a skill shortage exists, certain work permits can still be fast tracked – despite the tightening of visa rules for migrants from outside Europe.

Recruitment from outside Europe requires the employer to hold a sponsorship licence (see www.gov.uk/government/collections/sponsorship-information-for-employers-and-educators.) Once this has been obtained, the visa application procedure requires the employer to fulfil the requirements of Resident Labour Market Test (RLMT) – i.e. to demonstrate that it is not possible to fill the post from within the UK or EU. This can be time consuming and risks the possibility that the desired applicant finds alternative employment elsewhere before the work permit is received.

The good news, however, is that Ground Engineers are on the Shortage Occupation List (SOL). This does not affect the requirement for employers of migrant labour to be licensed, but once this hurdle has been overcome (and the necessary administrative and monitoring structures have been put in place) – the RLMT is not necessary and the issue of a visa should be relatively straightforward and reasonably quick.

A number of things to be aware of:

Your HR Department may not be aware that Ground Engineers are on the SOL. (Civil Engineers were removed from the list some years ago). See Table 1.
Table 1
The visa issuing people do not understand ground engineering. To minimise problems, avoid the temptation to use your company’s job title. Stick to the generic occupations listed in the SOL. These are (April 2014)
A minimum salary applies: for new entrants this is £19,700 (SOC code 2142); £20,000 (SOC code 2113); and £20,200 (SOC code 2121). For experienced people it is £24,600 (Soc Code 2142); £27,000 (SOC Code 2113); and £28,700 (SOC code 2121). (Higher thresholds may apply if the holder is accompanied by his/her family).
The fees for applications via the SOL route are slightly lower than normal Tier 2 application rates.
Since 2011 there has been a limit of 20,700 work permits issued each year under the Tier2 regulations. Applications for job titles on the SOL have priority.
For very experienced, very specialist roles who don’t easily fit into the above job titles – it may be possible to get a work permit under the Tier 1 Exceptional Talent rules. These require a letter of personal recommendation from someone in the UK who is familiar with the applicant’s work and his/her contribution to the field, and qualified to assess his/her claim to be a world leader or a potential world leader in the field. Applications will be assessed by the Royal Academy/Royal Academy of Engineers/The Royal Society.

Further information and forms can be found online – and contact numbers are readily available for guidance by UK Visas and Immigration staff.

The Ground Forum would be very interested in receiving feedback (positive and negative) from anyone obtaining visas for ground engineers – and advice that might be helpful to other applicants.

REMEMBER: Recruitment from outside the UK is not a substitute for developing UK talent. The industry urgently needs more well qualified UK ground engineers. Many employers are already reaping the rewards of closer liaison with universities and the early recruitment of undergraduate students and recent graduates who can benefit from work experience and specialist training in the ground engineering industry.

Article Business Practice Executive

Ground Engineering Talking point on RoGEP

3rd Sep 2012 - by Ann-Marie Casserly

Tags: Engineering RoGEP

UK Register of Ground Engineering Professionals (UK RoGEP)

It is nearly a year since we launched UK RoGEP and things have moved on at quite a pace. UK RoGEP Register now has over 60 registrants and the number of applications is increasing. The uptake by ground engineers has been higher than we originally considered and we are anticipating a 50% increase in applications during the next year!

One of the key drivers from a client perspective was that ground engineering work was being carried out by people working outside their area of expertise and qualifications. This unfortunately is still occurring on a regular basis as noted by AGS members. The AGS are about to publish a client’s guidance document which will provide advice and guidance for procuring ground engineering services with a particular emphasis on UK RoGEP and SiLC registrations.

With regards to UK industry recognition of UK RoGEP, various client organisations have been positive in the aims, objectives and needs for registration of ground engineers. The Welsh Government, UK Highways Agency and Network Rail are all fully and publically endorsing UK RoGEP registration. There is also evidence that some clients are now requiring ground engineering specialists and advisers to be involved in their projects, the Scottish Forestry Commission being one of them. The three levels of registrant are now also beginning to appear in guidance documents and client specifications. The recently published Site Investigation Steering Group specification document provides details of the roles that should be undertaken for the three levels of registrant.

The high number of applications for registration has led to, on a few occasions, a longer turn-around of application processing. We originally thought six weeks would provide sufficient time for the assessment and auditing process to be carried out; however there have been occasional “hiccups” which the UK RoGEP Panel have addressed. We have apologised to candidates where delays have occurred and explained the reasons behind the delay.

These “hiccups” include those you might expect in a new organisation where “new ground is being broken” (excuse the unintended pun!). We have had to modify certain application forms to make the process easier for both applicants, sponsors and indeed for the assessors.

Other delays have occurred when the sponsor’s statements and the sponsorship forms have not followed the guidance provided. This has particularly been seen with regards to the personal statement, where one of the key factors used by the assessors are evidence of the six attributes (Innovation, Technical Solutions, Integration, Risk Management Sustainability and Management) which can be identified in carrying out projects, research and writing technical papers.

The other key matter is the sponsorship of candidates. The original members of the Panel approved the sponsorship of all applicants whom were personally known to them. As the number of registrants increased they in turn were able to sponsor further applicants whom they had known and worked with. With the success of UK RoGEP registration there were issues with some applicants who could not obtain registered sponsors. We have therefore allowed particular non-registered ground engineers to become sponsors subject to the approval of the Panel. However, this is a temporary arrangement that will be determined in the near future as going forward there should be sufficient sponsors who are registered.

Continuing Professional Development (CPD) is a requirement for admission to the Register and applicants are asked to provide details of both their CPD Plan and Record. Whilst it is expected that such documents would cover general professional discipline matters, registrants are additionally expected to plan and undertake occupational CPD specific to the Register. Furthermore, UK RoGEP Registrants are also bound by their own institution’s rules of professional conduct. UK RoGEP will be issuing further guidance notes concerning CPD in the near future.

For further information on UK RoGEP visit the www.ukrogep.org.uk or www.ice.org.uk

The Defence

Test of Reasonableness

INDIRECT/CONSEQUENTIAL LOSS EXCLUSION

FINANCIAL CAP ON LIABILITY

TIME LIMITATION

Conclusions

References