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Morgan Sindall鈥檚 拢10m claim against a consultant for allegedly failing to spot defective steelwork designs for work at Old Trafford cricket ground will be allowed to progress, after a judge rejected a request for the case to be dropped.

A judge at the Technology and Construction Court accepted consultant Capita鈥檚 accusation that the contractor had deliberately delayed progressing its claim while it explored other options, he said it did not constitute abuse of process and refused the strike out request.

While court documents filed as part of the strike-out judgement do not go into detail about the alleged defects, the 拢12m Old Trafford job 鈥� which involved improvements to the south east and south west stands for Lancashire County Cricket Club 鈥� was set back by widely reported structural steel problems in 2012.

Construction was halted for a week in 2012 after site staff spotted a problem with a supporting beams one of the two 3,500 capacity stands under construction.

An emergency inspection was carried out on both stands and a solution was put in place, with temporary support columns installed as an intermediate measure to allow the stands to open in time for the 2012 season.

West Yorkshire steel firm Sabre Structures went into administration during the build and when Morgan Sindall finally completed remedial works 鈥� installing additional structural steel to replace the view-obstructing columns 鈥� in 2014, it had incurred significant extra costs.

Morgan Sindall has obtained a default judgement against Sabre and has also begun proceedings against the steel specialist鈥檚 insurers Aviva, which denies liability.

Even if Morgan Sindall wins its case against Aviva, the firm鈥檚 liability under Sabre鈥檚 insurance policy is limited to 拢5m, leaving a shortfall against the losses claimed by the contractor.

Capita鈥檚 involvement in the case, according to court papers, relates to Morgan Sindall鈥檚 claim that the consultant failed to review Sabre鈥檚 designs adequately or warn 鈥渟ufficiently strongly and sufficiently early of the defects鈥�.

Capita contends that the problems were caused by Morgan Sindall鈥檚 engagement of Sabre and in choosing 鈥渘ot to follow or adopt the design provided by [Capita] but instead to adopt a 鈥榲alue engineered鈥� course and to use Sabre鈥檚 design鈥�.

The firm insists it provided warnings and that Morgan Sindall did not share sufficient information early enough for it to provide stronger warnings but the contractor says these warnings were 鈥渋nsufficient鈥�.

Capita鈥檚 request to strike out the case was made on the grounds that Morgan Sindall had delayed the commencement of proceedings and further delayed the progress of the case.

An initial pre-action protocol letter of claim was sent in February 2014 and the subsequent years saw on-off correspondence between the two parties.

In February 2016, responding to a letter from Morgan Sindall鈥檚 solicitors, Capita鈥檚 solicitors pointed out that it had been more than six months since they received correspondence from the claimant鈥檚 representatives, and expressed that they were 鈥渂affled鈥� by the 鈥済lacial pace鈥� at which the claim was being progressed.

Capita also noted that there was a period of 21 months between March 2020 and November 2021 in which it received no communications from Morgan Sindall.

Capita says the delay has potentially prejudiced the case against them, with two of its potential lay witnesses having left the firm and remain unresponsive to recent correspondence.

Its expert witness, who was originally engaged in 2014, is now aged 78 and, according to the court papers, 鈥渢here is an inevitable risk that he will not be available for a trial at some point in the future鈥�, given that the case management conference is only being conducted this month.

The firm contends that the contractor began proceedings with no intention of pursuing them and was keeping them 鈥渙n the back burner鈥� while pursuing other routes, including the Aviva lawsuit 鈥� it wanted the case dropped based on this alleged abuse of process, despite Morgan Sindall having now brought the claim to life.

Justice Eyre鈥檚 interpretation of the case was that Morgan Sindall had 鈥渄eliberately鈥� put the matter on hold to 鈥渢read water鈥� while it clarified its position with the Aviva case.

Nor did he accept the contractor鈥檚 argument that the Aviva claim was so closely related that progressing it was tantamount to progressing the Capita claim.

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But he said tying up the action against Aviva first was 鈥渃ommercially sensible鈥� for Morgan Sindall and noted that Capita had acknowledged as much and urged this course in November 2017 and again the following year.

He also agreed that the Aviva proceedings were 鈥渘ot straightforward鈥� and that Aviva had not facilitated the speedy progress of that claim.

But he was not satisfied that the delays constituted an abuse of progress and that even if he had concluded otherwise, he would not have struck out the claim.

He said: 鈥淭he factors which led me to the conclusion that the claimant鈥檚 conduct was not abuse of process would operate, if the balance tipped the other way and the behaviour was found to be abusive, to reduce the gravity of that abuse.鈥�

Both Morgan Sindall and Capita have been contacted for comment.