The Museum of Free Derry’s “Fraud & Deceit” Allegations

It was an extraordinary event in the completion of the extension to the Museum of Free Derry that the consortium of local companies that designed and project managed the work – under the title ‘The Integrated Design Team‘ – had to go first to Adjudication and then to the High Court to win an order directing the Bloody Sunday Trust to pay its fees amounting to – in the end – some £267,000.

The Integrated Design Team consortium was composed entirely of respected Derry/Londonderry expertise:

• Brennan Associates (Architects)
• The Mulheron Partnership (Chartered Quantity Surveyors & Construction Cost Consultants)
• Ivan Scott Associates (Civil Engineers)
• Gillespie and Cummings (Electrical Engineers & Contractors)
• Safety Professionals (Construction Company)

The Bloody Sunday Trust had initiated the contract in 2013 funded almost exclusively by ‘public service funders’ worth approx. £2.4M.

The newly refurbished and extended Museum was officially opened by American Jesse Jackson who referred to IRA mass murderer Martin McGuinness and Jesus Christ in the same sentence.

Jackson had long lost his lustre in America.

On one occasion, Jackson expressed a wish to cut Barack Obama’s “nuts off” apparently jealous of the latecomer’s success while his own star had dimmed.

When The Integrated Design Team presented its “fee account” or bill in August, 2017 two months after the Museum officially opened, the Bloody Sunday Trust failed to do two things – it failed to pay the amount and it also failed to issue a “Payment Notice” or “Pay Less Notice” – a contractual device indicating grounds for refusal to pay a specified amount at that juncture.

The Bloody Sunday Trust did nothing but simply refuse to pay the bill.

In December of 2018 – a full 16 months after presenting its bill – The Integrated Design Team served notice on the Bloody Sunday Trust that it was taking the case to binding Adjudication, a form of dispute arbitration agreed in the original 2013 contract.

A respected RIBA Adjudicator was appointed – Ronald Moody of the Royal Institute of British Architects – who gave the Bloody Sunday Trust extra time to prepare its case.

George Brennan of Brennan Associates, Architect, represented The Integrated Design Team.

Tony Doherty, convicted IRA bomber and gunman, represented the Bloody Sunday Trust.

Doherty’s affidavit was extraordinary.

Doherty declared that:

• he was a journalist only.

• he was a volunteer Chairman of the Bloody Sunday Trust who had no construction law experience.

• since the Bloody Sunday Trust was a charity, he should be given extra leeway.

In spite of his admission that he had no construction law experience, Doherty went on to claim that The Integrated Design Team consortium:

• Charged excessive fees.
• Did not base the fees on contractual rules.
• Duplicated fees that were previously paid.
• Was partly responsible for delays to the job.
• Failed to exercise a necessary degree of skill, care and diligence.

The Integrated Design Team‘s breaches – Doherty claimed – risked causing the Bloody Sunday Trust to incur additional costs of £98,079.60 and potential loss of £120,000 in funding.

Taken together, these allegations amounted to claims of Deceit and Fraud on the part of The Integrated Design Team and were treated as such by the Adjudicator, Ron Moody.

It was noted that the allegations were only raised by Doherty/The Bloody Sunday Trust during the Adjudication process.

Having reviewed the material supplied by both parties, Moody’s Adjudication was handed down in February of 2019 in respect of three matters only:

• the amount payable.
• the interest payable on the (delayed) amount.
• the costs of the adjudication.

Moody declared that Doherty’s failure to issue the contractual “Pay Less Notice” at the appropriate point in time invalidated his refusal to pay Brennan’s bill within 28 days of its presentation.

The Adjudicator’s role was purely to decide on whether the Defendant, Doherty/Bloody Sunday Trust, should have paid the bill within the contractually required 28 days – the other matters were outside the remit of his role.

The matter referred to the Adjudicator by George Brennan was simply whether the bill should have been paid in the light of the contractual agreements.

The Adjudicator’s Judgment

“The Defendant could have protected its position regarding the value of The Integrated Design Team‘s account and its own counterclaim by the simple expedient of serving a compliant payment notice and/or a payless notice but it did not.

Consequently, I find that notified summons in respect of The Integrated Design Team‘s fee account number 28 at some stage therein due i.e. £210,270.78, exclusive of VAT, and that such sum should have been paid by the Bloody Sunday Trust to The Integrated Design Team not later than 15 September 2017.”

This was an outright win for The Integrated Design Team‘s consortium of Derry/Londonderry expertise over the ignorant Bloody Sunday Trust represented by Tony Doherty.

The 2013 contract agreed by both parties required them to respect the decision of the Adjudicator signed on January 25, 2019.

But still the Bloody Sunday Trust refused to pay The Integrated Design Team‘s bill – with interest and legal costs accruing.

So in November of 2019, The Integrated Design Team went to the High Court to enforce the Adjudication award of the previous January against the Bloody Sunday Trust/Tony Doherty.

Gunfight at the O.K. Corral

While the summary judgment at the High Court could be likened to the 30 second confrontation at the O.K. Corral, the heading should more properly read:

Bloody Sunday Trust Routed at High Court

By the time The Integrated Design Team‘s case reached the High Court in November of 2019, George Brennan – who had spent most of his career working in London before returning to Derry/Londonderry to head his own successful practice, Brennan Associates – had already left his native city to take up a job in London once more.

The Bloody Sunday Trust‘s case was routed at the High Court in a summary judgment, with sharp criticism directed at it for raising the defamatory accusations of Fraud and Deceit against The Integrated Design Team without evidence to prove either of these.

While Tony Doherty had claimed during the previous Adjudication process that he was ignorant of construction law, he now managed to be represented by a Queen’s Counsel AND a Barrister while The Integrated Design Team made do with just a barrister.

What had prevented Doherty getting legal advice about construction law prior to the earlier Adjudication process since money to pay for legal advice now appeared limitless?

Justice Horner declared:

[29] As I have recorded, the Defendant in this case relies exclusively on fraud on the part of the Plaintiff to defeat the claim for summary judgment on the adjudicator’s award.

I gave the Defendant the opportunity to serve a defence signed by Mr Orr QC who appears with Mr Coyle for the Defendant unambiguously alleging fraud on the part of the Plaintiff.

Fraud is a very serious allegation to make about anyone, especially a construction professional whose reputation in most cases will have been the product of many years of tireless industry.

I would have expected Senior Counsel to sign a defence alleging fraud and/or deceit against the Plaintiffs if the Defendant was truly serious about making such a case: see 9.06 of Civil Practice in the Supreme Court and Rule 14 of the golden rules of pleading.

[30] In this case no defence has been served alleging fraud signed by Senior Counsel. The skeleton argument submitted on behalf of the Defendant alleges that “the expert evidence generated on behalf of the Defendant is redolent of an award procured by fraud and deceit. There will be a counterclaim in addition for breach of contract and professional negligence.”

[31] The phraseology is ambiguous but one thing is certain, to date there has been no pleading denying that the Plaintiff is entitled to judgment because the award made by the adjudicator was declared by “fraud and deceit”.

Both Tony Doherty’s and the Bloody Sunday Trust’s incompetence in failing to present a coherent case during the Adjudication allied to their unsupported allegations of Fraud and Deceit resulted in a summary judgment against them directing them to pay The Integrated Design Team‘s entire bill plus interest and costs.

There was no evidence of Fraud or Deceit.

There was no defence in claiming to be ignorant of construction law.

There was every opportunity to raise matters such as expert advice and issues of overcharging during the Adjudication but these opportunities had been missed.

The failure to issue a Pay Less Notice was fatal to the Bloody Sunday Trust‘s case and that failure could not be covered up by accusations of fraud “so lacking in substance and so late in the day“.

Justice Horner remarked:

In the circumstances I find that the Plaintiffs are entitled to summary judgment for the full sum claimed.

The full sum was by now £266,913.59 exclusive of VAT – £23,623.35 being interest on the fees, £24,660.46 being legal costs and £8,250 being the Adjudication costs.

Had the Bloody Sunday Trust paid the initial bill within 28 days of its presentation, it would have saved a lot of time and approximately £56,533.81 in costs and interest.

It would also have saved itself the embarrassment of alleging Fraud and Deceit against the respectable Derry/Londonderry entities making up The Integrated Design Team that had served it so well since 2013.

Governance in the Bloody Sunday Trust

Since the then “volunteer” Chairman of the Bloody Sunday Trust – Tony Doherty – had bleated his own incompetence before the Adjudicator in a vain attempt to swing the case in his favour, the question arises whether all of the Directors/Trustees of the Bloody Sunday Trust were aware that unsupported allegations of Fraud and Deceit were going to be leveled against the five respected Derry/Londonderry commercial entities making up The Integrated Design Team.

Did they all agree this vicious approach to defaming The Integrated Design Team?

In any other organisation with a shred of decency, the Directors/Trustees who had engaged in this type of behaviour subsequently criticised in the High Court judgment would have resigned or been required to resign, not least for wasting £56,533.81 – that sum not including the costs of the High Court O.K. Corral misadventure.

Why did the Directors/Trustees of the Bloody Sunday Trust not issue an abject public apology to The Integrated Design Team for the unsupported public allegations of Fraud and Deceit arising from the redevelopment of the Museum of Free Derry?

Since the Bloody Sunday Trust is also a Charity, the submitted annual report for the year ended March 31 2020 may be read on the Charity Commission’s Website where the sorry saga of the Bloody Sunday Trust‘s attempt to dodge The Integrated Design Team‘s bill was recorded in a single paragraph:

The Bloody Sunday Trust and Museum of Free Derry Limited entered into a mediated process in March 2020 in relation to a financial dispute with the Museum of Free Derry capital build integrated design team in respect of professional fees. This company engaged openly in the process and a settlement was agreed in September 2020. The Trust developed a business case for additional monies to cover the settlement and associated mediation costs, which was submitted to the funders involved in the capital build.

The Dept for Communities approved funding for the settlement and mediation costs on behalf of the funding partners in February 2021 bringing this matter to a close.

Wow! There was no reference to the first Adjudication loss or to the subsequent High Court rout!

There was no problem finding dosh to fill the cash hole created by the Bloody Sunday Trust blockheads while the Department for Communities British Minister was Sinn Féin’s Deirdre Hargey, last in the news for seeing nothing and hearing nothing while Robert McCartney was being attacked and murdered by the IRA in Belfast.

And so the matter of the Bloody Sunday Trust‘s High Court misadventure ended with the allegations of Fraud and Deceit totally dismissed.

George Brennan left his native city taking his talent and expertise to London where he was made Director of a prestigious UK firm.

The Bloody Sunday Trust blockheads who went head to head with The Integrated Design Team and lost continue in post.

The stain of false allegations surrounding the completion and opening of The Museum of Free Derry has been disappeared in a manner that Joseph Vissarionovich Stalin could not have bettered.