From our legal correspondent...

A post I wrote back in June 2020 attempted to bring readers as up to date on the legal claims surrounding Busway construction as was possible, given the paucity of information in the public domain. If nothing else, it served as a reminder that the issue is far from resolved.

Fast forward 7 months - which probably counts as "speedy" in the legal world - and the current case has taken another turn. It's reported that BAM Nuttall, alongside insurance company Zurich, have recently submitted a counter claim, alleging that the County Council owes them £1m in "retention fees" from when BAM Nuttall was hired in June 2008.

So to recap: the County Council is claiming £74m, whilst the contractors and their insurers are claiming £1m or so. Don't expect a speedy resolution!

The information comes from a legal news website Law360 (part of Lexis Nexis). Unfortunately, most of the article sits behind a paywall, but in case any of you has access, here's the link.

Busway construction issues - it's back to court again!

Longer-term readers of this blog will be aware that the original construction of the Busway raised a number of issues regarding costs and alleged construction defects. Back in August 2013, the County Council and contractors BAM Nuttall settled a case out of court. There's more information about this in a couple of our 2013 posts - those of 30 August and 8 September.

Then in December 2016, New Civil Engineer reported that the County Council was suing BAM Nuttall for a £31 million for repair of defects - see the 15 December post. I haven't been able to trace what happened to that claim.

Fast forward to 2020... and the Cambridge Independent reports that the County Council is again pursuing a case against BAM Nuttall. And again over the cost of repairing what the Council alleges are defects. The Cambridge Independent report can be found here.

Now, given the speed at which civil court cases proceed it's possible that this latest one is simply a development from the 2016 claim. Or it might be entirely different.

BAM Nuttall is defending the claim.

Smarter Cambridge Transport publishes major report on Busway defects

Many readers of this blog will know of Smarter Cambridge Transport (SCT), the initiative of an impartial group of local volunteers, who are developing and promoting a modern vision for integrated transport in Cambridge and the surrounding region. They have recently posted a major report, with accompanying commentary, on the Busway's defects. Actually, I'd go further than that - although the title of the report mentions only "defects", the report itself explores the whole long-term viability of the Busway, not just the immediate repairs which are required (and which are likely to be the subject of legal proceedings between the County Council and BAM Nuttall).

Here's just a short taster from SCT's blog post:

Smarter Cambridge Transport has prepared a detailed review of reports commissioned by the County Council. It identifies more than twenty areas of concern with the busway not identified in those reports. The council leader, Councillor Count, has indicated that two companies, Capita and Atkins, are continuing investigations and that our findings have have already been investigated. We cannot verify this until a new report or statement of claim is published.

Perhaps the most important question we pose is whether the problems are due in part not to construction defects, but to inherent design flaws that repairs alone cannot fix.

The review runs to 22 pages. For those who don't have the time or energy to read the whole thing (although it comes highly recommended for anyone interested in the future of the Busway), there's the usual Executive Summary. And the blog post which helped launch it also provides a useful (but different) summary.

Although the report was launched on 20 July, the version currently available from the SCT website (and to which the link below leads) is dated 26 July (the blog post was updated on that date as well). There's no indication as to what changes were made that I can find.

Here are the links you need:

Blog post: http://www.smartertransport.uk/guided-busway-defects/

Report (PDF): http://www.smartertransport.uk/wp-content/uploads/2017/07/Guided-Busway-Defects-1q.pdf

According to the Cambridge News, the County Council "do not consider that [the SCT report] raises any new issues that need to be considered as part of our claim [against BAM Nuttall]." In addition, the council leader, Councillor Count, has indicated that twenty areas of concern with the busway listed by SCT as not having been identified by Capita's reports into the Busway's defects "have already been investigated". Smarter Cambridge Transport say they cannot verify this until a new report or statement of claim is published. Here's the link to that Cambridge News story.

[Declaration of interest: earlier this year I was asked to comment on an early version of the SCT report  - which I did. I have had no involvement with the report or its authors since then.]

£31 million claim against busway contractor

Cambridgeshire County Council is suing BAM Nuttall for £31 million for repair of defects on the guided busway track. BAM Nuttall is the contractor which built the busway.

https://www.newcivilengineer.com/latest/cambridge-council-to-sue-bam-for-further-31m/10015672.article

Busway defects report - BAM Nuttall responds

I only have the Cambridge News report to go on, so I'm treading carefully (it would be nice if the BBC were to pick up this report and run a story on it, but I've been unable to find anything yet). The CN is currently running this story - it suggests (a) that BAM Nuttall's relations with the County Council haven't improved any, and (b) that they are quite prepared to put right any Busway faults for which they are responsible. Note this last phrase, because the current version of the CN headling on its website ("If there is anything wrong we will put it right") is definitely not supported by the company's statement further on in the story! It's only defects for which BAM Nuttall is responsible they are promising to correct. And there's no indication in the company's statement that they accept all (or, indeed, any) of Capita's findings. If there's one thing we can be sure of it's that this is likely to run for a little while yet! First of all we need to see what the County Council's General Purposes Committee makes of the report. That meeting takes place next Tuesday, 29 Nov.

Busway defects - report published

Just over a year ago, the County Council and BAM Nuttall agreed a temporary suspension in what had become an increasingly bitter "blame game" on the defects that had become all too apparent in the Busway's track and foundations (ok, you're right - that's my personal gloss, not the official line!). Indeed, they agreed to an independent survey and investigation, as reported in a blog posting from September 2015.

Well, the waiting is over. The issue is due to be discussed at the 29 November meeting of the County Council's General Purposes Committee, and in anticipation of that meeting the report of that investigation (mostly carried out by Capita) has just been posted on the County Council website. (except for one of the appendices, which has been withheld on grounds of confidentiality).

Documentation for this meeting can be found here.

The Cambridge News has already read the report and come to its own conclusion - the headline on its news story (i.e. the one that was there when I wrote this post) reads:

"Independent experts agree with Cambridgeshire County Council that Guided Busway contractors must pay for repairs"

If you want to read the CN's full story - and why wouldn't you, given that it might save you reading all 170-odd pages of documentation - here's the link.

Survey of busway structural faults

The legal dispute between Cambridgeshire County Council and BAM Nuttall, the contractors who built the busway, appears to be on hold while the two parties jointly fund a survey and investigation of the busway and its construction. Some elements of the survey will take place at night to minimise disruption to busway users.

Read more details at
http://www.cambridge-news.co.uk/Cambridgeshire-guided-busway-dug-investigations/story-27868295-detail/story.html

Busway track repairs

If you are travelling on the busway today, you may notice that the track is closed near Histon for repair work. That section of track has been quite bumpy for some time. Between Longstanton and Oakington, and also between Oakington and Histon,  there are two other places where they've dug out some of the track ballast, presumably with a view to carrying out repairs.

But how bad is ithe busway track in reality? Will every track section have to be lifted and new rubber [ads inserted?

An article in the Wisbech Standard here suggests that it is very bad.

The busway between Trumpington and  Addenbrooke's will be closed for repairs next weekend.

Also reported in the Cambridge News here.

County Council committee to debate busway defects

The headline is the simplified version - in fact, the County Council's General Purposes Committee, due to meet on Tuesday, October 7, will be debating expert advice on tackling busway defects. This includes technical advice in respect of both the concrete guideway and the foundations and drainage, as well as legal advice from a QC.

According to the County Council (in its press release), "the technical advice suggests that Bam Nuttall is responsible for defects on the Busway. The report outlines that some parts of the Busway were either not built to the agreed design or don’t comply to national standards specified in the contract.

Defects include
• Shims and neoprene pads were put in without being fixed so they now slip and cause movement of the beams, effecting ride quality.
• Foundations were not deep enough as outlined in national guidelines on certain sections so they could move in the clay conditions.
• Inadequate drainage at two locations
• Joints between the guideway beams that were too narrow to allow for thermal expansion of the beams.
• Some bearings were identified as being out of position. 
• Beams not being restrained enough by brackets so they move.

...the legal advice is that this is a breach of contract and that the Council has a good case and should pursue the contractor for the money to pay for the necessary repairs."

Officers are recommending that councillors should "resolve to carry out works to rectify all of the superstructure, foundation and drainage defects in accordance with the assessment of the Project Manager and the advice of the Council’s expert technical advisers, subject to securing funds from Bam Nuttall in accordance with the defect provisions in the construction contract or alternative legal argument; [and] instruct Officers to initiate negotiations and any necessary legal proceedings to recover the assessed cost of defect correction in accordance with the contract, consequential losses arising from those defects, and any costs incurred to date and incurred in future in investigating and taking advice on the defects."


Full documentation (minus Appendix D - which is confidential to members, and any of discussion of which will take place with press and public excluded) is available here. Some of the sums involved are quite eye-watering (see Appendix B, for example).

Guided Busway Lessons Learned Review

Cambridgeshire County Council has published the report of a review it commissioned from Bill Edwards FICE, FCIHT, MCICES, FCIArb, a partner at EC Harris LLP, entitled the "Cambridgeshire Guided Busway Independent Review". It's due to be discussed at next Tuesday's meeting of the Economy and Environment Committee. The title of this blog post is the one assigned to it in the committee agenda (follow this link if you want to read the report).

The review was initiated following the court case involving the County Council and BAM Nuttall, and is principally concerned with the contract, and the procurement process leading up to it, aspects of which were at the heart of the legal action.

I haven't had time to read the report, but  Cambridge News reporter Jon Vale has, and writes about it here. If you value your sanity you might want to skip the comments below the line, though...

Investigating Busway faults - the costs so far...

The Cambridge News has used FoI powers to extract from the County Council the costs, over the past 3 years, of "investigatory works" on outstanding faults. This is before any money''s spent on fixing them. Of course, it's possible that some or all of the costs might be recoverable from BAM Nuttall. The story includes, inevitably, a quote from Cllr Mike Mason.

Figures exclude legal costs.

The Cambridge News story can be read here.

More on the busway track faults

Cambridgeshire County Council's Cabinet has approved a report on the £20 million of faults that have been identified on the guided busway track.

The faults potentially affect every track beam between St Ives and Cambridge, and the 'serviceability and longevity' of the busway are now being questioned.

It is possible that legal action may be taken against the company that built the busway, BAM Nuttall.

See article in Cambridge News.

Busway track in need of major repairs

A report published by Cambridgeshire County Council has revealed that the busway track is in need of around £20 million worth of repairs, according to an article in the Cambridge News.

The faults are in the bearings which support the concrete track beams, and in the foundations of the beams. There are mid beam cracks which are bigger than permissible.

As these problems arise from the way the track was constructed, legal action against  BAM Nuttall, the engineering firm which built the busway, is being considered.

County Council to discuss "disquiet and concern"

The County Council's central Council - that's to say, the general forum of all 69 elected members - is due, at its meeting on Tuesday 25 March, to discuss a motion relating to the Guided Busway. This motion, submitted by Councillor Mike Mason (Independent, Cottenham, Histon & Impington)

"notes that Cambridgeshire residents and members continue to express disquiet and concern over the failure of the Council to properly scrutinise and publicise the financial, contractual and operational legacy associated with the Cambridgeshire Guided Busway.  Furthermore it is noted that much of the business in connection with the contract and subsequent legal action has not been conducted in open meetings and that this is not in the public interest or in accordance with Council’s aims and policies. Council therefore hereby resolves to set up a cross party Scrutiny Panel with wide and comprehensive terms of reference, to fully examine, in public, all aspects of this major infrastructure scheme and to report back to Council with recommendations following an agreed timetable."

 Full details of the meeting - and, in due course, the minutes - appear on the County Council website.

Meanwhile, the Cambridge News reports that Coun. Mason is also concerned about the condition of the track - linking this concern to the results of a Cambridge News investigation. The News story can be found here.

Busway faults

Cambridgeshire County Council is having to consider how to remedy a number of serious faults with the guided busway.

Some relate to shrinkage and heavage of clay affecting the foundation of the busway. Others concern dropping of the end of the concrete beams.

BAM Nuttall is said to have rectified a fault that required buses to slow to 5mph at Histon in the summer.

But regular travellers on the busway will be aware that buses still traverse some bad sections of track  a short distance east of Histon.

Read Cambridge News article here.

More about Cambridgeshire County Council's dispute with BAM Nuttall

A long letter in this week's Hunts Post (25 September, page 7) explores why the County Council's contract with BAM Nuttall may have gone wrong. There letter explores the variety of ways in which such contracts may be organised depending on circumstances. The punch line of the letter is that someone (or persons) in the Council made a mistake that was to the detriment of the Council's finances, and that person should be held to account. Read the letter here.

BAM Nuttall dispute in Hunts Post

Two letters in this week's Hunts Post  (11 September, page 6) about the County Council's dispute with BAM Nuttall over the building of the busway.

One suggest that the County Council has misled the public over the matter, and the other talks about the overrun of costs falling as a burden on the taxpayer.

BAM Nuttall's decision to settle out of court

Hugh Taylor has emailed me the following, which is about why BAM Nuttall decided to settle out of court with Cambridgeshire County Council:

Tantalisingly, the New Civil Engineer website posted a news story on 
Wednesday, with this beneath the headline:

"Bam Nuttall has explained its decision to settle in its dispute with 
Cambridgeshire County Council over costs to build its guided busway."

http://www.nce.co.uk/news/business/nce-live-news-updates-wednesday-4-september-uk-slips-to-10th-in-global-competitive-index/8652674.article?blocktitle=NCE-Live-Updates&contentID=8860

Given that Bam Nuttall has consistently refused to comment on the 
settlement, this was an intriguing prospect. Unfortunately, only NCE 
subscribers are permitted access to the details - and the story doesn't 
even turn up in the daily package fed to content aggregators such as 
Factiva or ABI/INFORM.

What does turn up in the package for 5 September, though, is a story 
about both the Cambridge and Luton busways. Much of the Cambridge 
section of this is a reworking of the County Council's press release, 
but there are a few points which are of interest, given that they come 
from an unbiased source, and one with a considerable reputation in the 
engineering world.

First, there's confirmation of the figures: "... Bam Nuttall last year 
issued a £43M counterclaim - so the settlement represents a £76M 
climbdown from the contractor's original position." This is the sum the 
County Council would have had to pay if it hadn't challenged the 
contractor's bill.

Then there's a clear explanation of just how little the "extra" work 
cost the Council: "It also means construction of the busway, which the 
council says was handed over two years late, cost the local authority 
£84.7M - just £800,000 more than the original price."

And finally this: "Bam Nuttall parent Royal Bam Group said the 
settlement had already been incorporated in its figures for the half 
year to 31 June 2013 and so would have no impact on profit forecast for 
the full year." I take this to mean that Bam Nuttall had anticipated 
this settlement some months ago - in other words, they had effectively 
given up the fight before the summer.

For anyone new to this saga, the NCE story provides a handy summary:

"The busway missed its original opening date in 2009, and the council 
charged Bam Nuttall a daily £14,000 fee for late delivery... After a 
number of attempts, the scheme was finally handed over in May 2011. Bam 
Nuttall then filed its counterclaim, citing mismanagement by the 
council's project manager Atkins as the cause of the delay. The council 
brought in Jackson Civil Engineering to complete additional work on the 
busway before it was finally commissioned in August 2011."

Dispute settled out of court

Cambridgeshire County Council today released a statement that they have settled the dispute with BAM Nuttall, builders of the guided busway, out of court.  The statement can be read here.

The agreement is said to be £76 million in the Council's favour. The Council has paid BAM Nuttall £84.7 million as against the original price of £83.9 million.

This news is also reported by Cambridge News here.

Dispute between Cambridgeshire County Council and BAM Nuttall

The dispute between Cambridgeshire County Council and BAM Nuttall, the contractor who built the busway, continues. The County Council's cabinet has convened a meeting to update certain councillors on progress with the dispute. The meeting will be on Friday 9th August, but will be held in private.

See Cambridge News website here.

The agenda for the meeting can be found on the County Council website here . It explains why the public and the press are excluded from the meeting and also names the councillors who are eligible to be present.