Not possible to calculate total cost of children’s hospital works until court case resolved – BAM

A 2020 case brought by the development board of the new children’s hospital against construction contractor, BAM Building Ltd, has re-entered the Commercial Court after “thousands of hours” of discussions failed to achieve a settlement.

The application for the case to return to the fast-track list was made by lawyers for BAM after intensive talks over 18 months “broke down”.

The children’s hospital works have been mired by delay and overrunning costs, with the latest projection putting the project above €2 billion.

BAM told the court on Monday that it will not be possible to calculate the total cost of the hospital works until this court case is resolved.

Mr Justice Denis McDonald re-entered the proceedings into his fast-track list on Monday and scheduled a hearing for October.

The row centres on the development board’s claim that BAM was required, under a 2017 contract, to begin a second phase of works in January 2019 focusing on above-ground superstructure and building work. It wants the court to declare that its instruction on this is a “valid and legally binding” one.

BAM disputes this and alleges the development board did not provide it with a complete and fully co-ordinated design on time for it to begin the second phase.

In a fresh affidavit, BAM’s commercial director, Seamus Kealy, confirmed that “thousands of hours” were devoted to settlement discussions between October 2021 and May 2023.

A resolution would require various commitments from both sides regarding the overall completion date and final price for the hospital, he said. The settlement discussions were aimed at resolving thousands of claims involving hundreds of millions of euros, he added.

Each party contests liability for the many changes and delays to the hospital project, he said.

Kathy Gilmore, a solicitor from A&L Goodbody, representing BAM, said the passage of time has made a resolution of the case “more urgent”.

It is not possible to determine the cost of the works “or even the approach that should be taken to determining how the cost of the works should be calculated” unless and until this court dispute is resolved, she said.

It is imperative, she said, that the parties and the public can “understand how the cost of the works can be determined”.

The validity of the instruction regarding the second phase of the works is key to assessing what approach should be taken to costing the works, Ms Gilmore added.

In response to BAM’s application, moved by barrister Patricia Hill, Mr Justice McDonald said he was satisfied he could re-enter the case to the expedited list notwithstanding that it was adjourned 20 months ago.