Effective support in a dispute concerning claims allegedly resulting from incorrect design documentation

A favourable judgment issued by the court of first instance ended a legal dispute in which a construction contractor, or rather one of the members of a consortium acting as the contractor under a public procurement contract for the construction of a railway overpass a flyover over a railway line and accompanying infrastructure, claimed almost PLN 4 million from the contracting authority.

The advocates and legal advisers of the Law Firm represented the designer in this dispute, who participated in the case as an intervener. This was due to the fact that the claimant, a member of the consortium acting as the contractor, based the factual part of the claims on allegedly incorrect design documentation, which had been previously prepared by the client and on the basis of which the construction works were to be carried out.

The claimant argued that the transfer of the allegedly incorrect design documentation and the subsequent delay in transferring the replacement documentation caused downtime on its part and, as a consequence, incurred both indirect and direct costs that were not offset by the work performed, as well as a loss of profit.

An important fact in the case was that an annex to the consortium agreement was concluded between the consortium members who were joint contractors, as a result of which the claimant ceased to perform the contract concluded by the consortium with the contracting authority (its scope of work was taken over by the consortium leader) and then decided to pursue claims against the contracting authority on its own. The other consortium members continued to perform the contract concluded with the contracting authority, which was completed and settled in full.

The court of first instance shared the position presented by the Law Firm’s advocates and attorneys that the fact of conclusion of an annex to the consortium agreement between the consortium members did not affect the content of the agreement concluded by the consortium with the contracting authority and, thus, did not open the way for the claimant to effectively pursue claims on its own. Thus, the court of first instance ruled that the claimant did not have standing to pursue claims arising from the construction contract concluded by the consortium with the contracting authority.

Notwithstanding the above, the Court found that even if it were to be assumed that the claimant had a right to pursue claims independently, it had not demonstrated them in the pending proceedings, either in principle or in terms of amount. In particular, the evidence taken in the case did not show that the design documentation prepared for the purposes of the investment was incorrect.

The judgment is not legally binding.