“Whilst the parties’ legal advisers may assist in identifying issues which the statement should address, those legal advisers must not be involved in either negotiating or drafting the experts’ joint statement. Legal advisers should only invite the experts to consider amending any draft joint statement in exceptional circumstances where there are serious concerns that the court may misunderstand or be misled by the terms of that joint statement. Any such concerns should be raised with all experts involved in the joint statement.”
“I act for Bridgend, the owners of the above site, we are instructed to shortly commence marketing the property with a view to its sale by residential development. We require a geotechnical report to include an enviro check, historic ordnance survey plans plus services and utility records. Your geotechnical report must provide foundation recommendations and a remedial strategy if contaminated material is found. Please note an asbestos survey has already been undertaken. It is intended that your report should be relied upon by the eventual purchaser therefore it must be capable of assignment with warranties at least twice. A statement on this is to be included in your report. The commissioning party will be Bridgend [who] will be responsible for payment of your invoice.”
“depending upon the outcome of the desk study and the trial pitting investigations further exploratory works in the form of boreholes, gas monitoring and/or laboratory testing may become necessary”
“typical densities of sampling grids can vary from 25m to 50m centres for exploratory investigations and 10m to 25m centres for main investigations”
“Unless otherwise amended the appointment will be in accordance with the Association of Consulting Engineers Conditions of Engagement 1995 or the latest revision thereof, inclusive of all current amendments.” (ii) Clause 5: “Nothing in [this contract] confers or purports to confer any third-party benefit or any rights to enforce any term of this contract.” (iii) Clause 10: “For any matter arising out of or in connection with pollution or environmental contamination the total liability under or in connection with this agreement at any time shall be limited to the lesser of: the direct costs incurred by the Client [Bridgend] in cleaning up the site of the works or any part thereof: and the amount if any recoverable by [IGL] in respect of such claims under any professional indemnity insurance taken out by [IGL].” (iv) Clause 11: “Subject to a limit of£300,000 for all such claims.”
“No potential contamination across the vast majority of the site. Asbestos within building structures”
“However, it would be prudent to undertake confirmatory laboratory chemical analysis once access to the eastern half of the site is readily available following demolition of the existing buildings and the removal of the numerous underground services. The testing should include a general suite of determinants, and more specific hydrocarbon analysis around the location of the fuel storage tanks/boiler room.”
“During site clearance the exposed formations should be inspected by a suitably qualified engineer for signs of contamination, and samples taken on a 25m grid. Additional sampling and testing should be carried out as deemed necessary.”
“This technical pack provides useful information for interested parties to consider prior to making an offer to purchase the site. The majority of the information provided is for guidance only and interested parties should satisfy themselves in respect of statements made, and in particular the capacity of services and utilities. The budget demolition quotes are for guidance only. Interested parties must satisfy themselves in respect of the costs of removing asbestos, demolition and site clearance. The ground investigation report prepared by IGL will be assignable to the successful purchaser if required.”
“asbestos within buildings. No contamination of soil surrounding the site”
“Assigned by Bridgend”
“To remove and dispose of all asbestos products … that are identified in the West reports or encountered within the buildings or structures during the demolition but excluding any material that may be buried or encountered during your development works. To soft strip buildings … To remotely demolish identified structures on site. To grub up building slabs (assumed 0.2m) and foundations to a depth of 1.5m …. To dispose of all other materials arising from the demolition works to suitable licensed facilities … No allowance within the above has been made for … removal of any hazardous materials other than mentioned above …”
“When the buildings were demolished we also carried out work on the foundations underneath. There were extensive materials which had been used as a sub-base for the slab. We had agreed with BDW at the outset of the contract when giving a price that any contaminated material under the slab was at the contractor's risk. This is fairly standard industry practice.”
“A disclaimer of liability in respect of a statement or service may be sufficient to preclude a finding of assumption of responsibility and reasonable reliance. This was the case in Hedley Byrne itself where the credit reference provided by the defendant bank was stated to be given without responsibility and as a result the bank was held to owe no duty. In McCullagh v Lane Fox & Partners Ltd Hobhouse LJ explained that a disclaimer was not to be construed narrowly in the same way as an exclusion clause, rather the court should “treat the existence of the disclaimer as one of the facts relevant to answering the question whether there had been an assumption of responsibility by the defendants for the relevant statement. This question must be answered objectively by reference to what the reasonable person in the position of [the claimant] would have understood at the time he finally relied upon the representation.”
“We understand that there is a possibility of the Design Team being novated to a contractor at some stage in the project. We confirm that we have had experience of this type of situation and are comfortable with this arrangement. Our fees would still stand if novation took place.”
“One needs to determine what responsibility, if any, judged objectively was assumed by MM towards MCL in this case. One can have regard, amongst other matters, to: (a) The contractual nexus or lack of contractual nexus between the party said to owe the duty of care and the party said to have been owed it; (b) What was said in writing and orally by MM to MCL and in what context it was said; (c) Any disclaimers issued by MM to MCL in relation to what was said; (d) What was said to MM or mutually understood by MCL and MM as to why information was sought; put another way, what was the express or necessarily implied purpose for the information being sought and supplied.”
“In my view, the very fact that the parties were trying to agree terms points more to there being no duty of care than there being one. The parties were seeking to legislate for their relationship by way of a proposed contract; it would be odd if, the contractual route having failed or not being achieved, MCL could procure for free an enforceable duty or warranty on the part of MM to exercise reasonable care together effectively with duties to perform services for MCL.”
“acted as a kind of warning to MCL not to rely upon material produced by MM either on the drawings or specifications themselves or to any change to or amplification of them. The fact that MCL may not have paid any attention to them is immaterial; that was its risk”
“are not exclusion or limitation clauses as such. They are simply aspects of the factual background from which the Court determines whether a duty of care arises. If a duty of care arises, then the disclaimer would not exclude; the reverse of this applies also: if there is no duty of care at all, there is nothing upon which UCTA can bite”
“they are simply a reminder to MCL in this case not to rely upon what it itself has not commissioned”
“No obvious contaminative practices have been undertaken on site or within the immediate surrounding area, other than the use of oil fired heating. Therefore, it is considered that there is very little risk of any sources of contamination being located on site.”
“I would have expected a reasonably competent professional to identify there had been extensive demolition on the site, that there was a significant risk with regard to contamination, with potential demolition materials, which needed to be fully assessed. And that's my conclusion and view.”