workmanship against the contractor must automatically be reflected in a claim against the Defendant on the basis that, if there is a defect, then the Defendant has been negligent for not identifying it and having it remedied”.1 Moreover, even on a reasonable examination “it is almost inevitable that some defects will escape [an inspector’s]… notice”. 3. In respect of the design elements, where revisions had been made these were necessarily minor changes and were not done with the intention that they would materially impact the finished designs. The Defendant was “not a design and build main contractor subcontracting the construction work…she was an architect fully entitled to let [the contractor] get on with their works to produce the necessary retaining walls and finished levels the Mark Enright design required”. 4. In relation to budgeting and payment, the Garden Project could have been completed within the Defendant’s initial budget of £130,000 and there was no negligence in specifying this figure as an initial sum between March – July 2013. The Defendant could not be criticised for “asking for a quote from her builders and then providing what she considered to be a reasonable uplift for the balance of the works”. Payments of £50,367 were made prior to 9 July 2013 on the basis of day works and the cost of materials. The TCC recognised those payments as “prudent and not excessive” given the work already carried out. Comment The initial Court of Appeal declaration that a duty of care arose in informal, non-paid, circumstances would no doubt have concerned many professionals. The decision of the TCC, however, shines a light on the practical realities of the situation and demonstrates that even at the more involved end of gratuitous work (as in this case) courts will be slow to create wide reaching tortious duties. An initial victory for the Claimants in the Court of Appeal proved Pyrrhic and they will now be facing both the additional costs of their project and their own and the Defendant’s costs in the litigation. The case also proves useful for contract administrators and architects who will take solace in the TCC’s recognition that sub-standard building work will not necessarily mean that there will also be a professional responsible for failing to appropriately design, inspect or supervise a project.
Giles Tagg Partner
Giles is an insurance litigator and has dealt with claims against a full range of non-medical professionals. He specialises in defending claims against construction professionals including architects, engineers and contractors.
He has experience of handling significant litigation in the Technology and Construction Court, arbitration, adjudication and mediation. Giles writes and speaks regularly on construction PI issues.
He also has a growing practice dealing with Educational Negligence claims, which is a relatively new but burgeoning area for negligence disputes.