Supreme court decision shows reliance cuts both ways “General reliance” under review The Trust sued the Council for the cost of repairing the roof arguing that the Council was negligent in issuing the CCC. The High Court agreed and awarded the Trust $15m. However, the Council was successful in its appeal, with the Court of Appeal agreeing that it was a negligent misstatement cause of action and because the owners had engaged and relied on their own agents and experts (and not the Council), the Council was not liable for the costs of repairing the roof. The Supreme Court1 disagreed and held that the Council owed a duty of care in negligence simpliciter to the plaintiffs when issuing the CCC and were negligent when issuing the CCC (it was issued before the PS4 was received from Mr Major). The Supreme Court said that under the Building Act 1991 (BA1991), a territorial authority’s duty of care “springs from” its regulatory role under that Act and there was no valid distinction in this context between physical inspections and the issuing of a code compliance certificate. They were both regulatory roles performed by a territorial authority under this duty of care and all owners (including commissioning owners) placed “general reliance” upon the council performing these functions without negligence. However, the Supreme Court upheld the decision of the Court of Appeal that the Trust was contributorily negligent in the circumstances and reduced the Trusts’ award of damages by 50%. The Trust had engaged experts that had provided advice and recommendations in respect of remedying the defects in the Stadium roof and the Trust had not adequately followed their expert’s advice. The Trust were on notice of the need to inspect the roof trusses but they failed to do so. Analysis: reliance cuts both ways There is very limited discussion as to why the Supreme Court considered this was not a negligent misstatement case. Rather, the Court focussed generally on a council’s role and responsibilities under the BA1991 and considered that issuing a code compliance certificate was no different to any other function such as issuing a building consent or carrying out physical inspections. The Court emphasised the control over the building process that a council has and the general reliance which present and subsequent owners place in the council as the rationale for why there was “no valid distinction” between any of the council’s regulatory functions in terms of the Council’s duty of care. The judgment is in keeping with how the courts have evolved and expanded the duty of care owed by territorial authorities under the BA1991 since Hamlin. Looked at in this light, the decision is not surprising.