BuildLaw Issue 35 April 2019 | Page 15

Defendant on the basis that she had been engaged by them as a professional irrespective of payment and had been negligent in the course of that retainer.
The allegations against the Defendant were, broadly, that:
1. She ought to have given a warning to the Claimants that the construction works should not be commenced or continued without sufficient construction detail being in place. That duty arose “because of her undertaking, as designer and project manager, the initial procurement and management of the project, identifying the necessary skills, locating the project team and arranging their appointments”;
2. She failed to identify “the need for the detailed designs and specifications that needed to be produced (by her or by another competent professional) without which there existed the risk that the works could not be safely built” nor did she advise the Claimants of that need;
3. She did not include sufficient construction detail in her designs to enable them to be built and, in particular, a number of alleged key structural elements were inadequate; and
4. She did not exercise cost control, prepare an adequate budget for the works and/or appropriately oversee expenditure against the budget.
The Claimants sought the difference between £150,000 plus VAT (initial fixed quote) and the figure eventually incurred of £369,288.
The Decision
The matter was heard before Martin Bowdery QC. The TCC was tasked with considering in detail “what the Defendant actually did during the course of her involvement with the Project” and identifying whether in doing so she “was negligent whilst doing what she did”. The TCC’s language was necessarily restrictive on the basis that “positive obligations are the realm of contract” and “a continued failure to perform a positive act will not sustain a cause of action in negligence”.














In rejecting the allegations of negligence, the TCC concluded that “a professional providing gratuitous services was liable for what he or she does but not for what they fail to do”. Any negligence could only have taken place before 9 July 2013 and was restricted to work actually undertaken by the Defendant – which, although privet-y, lacked contractual privity!
Shaped thus, the Claimants faced substantial difficulties in establishing both negligence and causative loss. Turning to the specific allegations against the Defendant:
1. Where it was alleged that the Defendant failed to warn then “in the absence of any contract, the Defendant was not under any duty to offer any such advice or warnings” and this failed in its entirety.
2. Although the Defendant owed a duty to carry out the inspections she did with reasonable care and skill, she was entitled to rely on her contractors and was not inspecting the structural work and groundworks for non-compliance which “no architect could be expected to inspect”. Claimants should be careful not to fall into the trap of assuming that “any claim for bad