“1. The Claimant Respondents (“the Burgesses”) own a residential property in North London called “Highfields”
“14. Between6 March 2013 and9 July 2013 the Defendant performed the following professional services, as architect and project manager, in relation to the Garden Project: 14.1 the selection and procurement of contractors and professionals needed in order to implement the Enright Design, including agreeing the terms on which they were engaged; 14.2 the planning of site commencement, preliminaries and initial strip out; 14.3 preparing such designs as were necessary to enable the Garden Project to be accurately priced and constructed; 14.4 attending site at regular intervals (approximately twice a week) to project manage the Garden Project, and to direct, inspect and supervise the contractors’ work, its timing and progress; 14.5 receiving applications for payment from the contractor, and advising and directing the Claimants in relation to their payment; and 14.6 exercising cost control by preparing a budget for the works, and overseeing actual expenditure against it. 15. In particular, the Defendant undertook detail design of the Enright Design, and made revisions to that design. The Claimants are aware of the following: 15.1 the Defendant produced a series of drawings dated15 May 2013 , under her professional trade name of Linia Studio, by way of detail design of the Enright Design (“the Drawings”); 15.2 around May 2013 the Defendant made a revision to the structural design of the Garden. In an email dated 23 May, timed at 13:52, she told the First Claimant that: We are not going to use double layers of sleepers on any other walls than the one at the very front. (the first one) from here onwards, we are using a steel structural support and bolting vertical sleeper [sic] to that (from behind) to minimise the use of sleepers as they are so pricey. 15.3 the Defendant altered, in the circumstances pleaded in paragraphs 16 and 17 below: (i) the shape of the curved lawn in the Enright Design, to make it straight-sided; (ii) the levels and design of the terraces in the Enright Design; and (iii) the layout of the paths of the Garden.”
“Summary and Conclusions 206. For the reasons set out above, I answer the preliminary issues in the following terms: i) No. ii) Not applicable. iii) Yes. Mrs Lejonvarn owed a duty of care to Mr and Mrs Burgess to exercise reasonable skill and care in the provision by her of professional services acting as an architect and project manager on the Garden Project. iv) The duty was to provide those services pleaded in paragraphs 14 and 15 of the Particulars of Claim with the exception of paragraph 14.2 and subject to the additional limitations and qualifications identified in the body of this judgment. vi) Yes, on both 28 April and17 May 2013 .” i) No. ii) Not applicable. iii) Yes. Mrs Lejonvarn owed a duty of care to Mr and Mrs Burgess to exercise reasonable skill and care in the provision by her of professional services acting as an architect and project manager on the Garden Project. iv) The duty was to provide those services pleaded in paragraphs 14 and 15 of the Particulars of Claim with the exception of paragraph 14.2 and subject to the additional limitations and qualifications identified in the body of this judgment. vi) Yes, on both 28 April and17 May 2013 .”
“Conclusion 128. For the reasons outlined, I would uphold the judge’s finding both of a general duty of care in relation to the provision of professional services and of a specific duty of care in relation to the services which he found were provided as identified in paragraph 14.1 and 14.2 to 14.6 of the particulars of claim. 129. I would, however, recast the answer to preliminary issue (iv). In relation to each specific duty alleged I would answer the question in the terms set out above, which may be summarised as follows: “In providing the professional service acting as an architect and project manager of: (1) project managing the Garden Project and directing, inspecting and supervising the contractors’ work, its timing and progress; (2) preparing designs to enable the Garden Project to be priced sufficiently for a fairly firm budget estimate to be prepared; (3) preparing designs to enable the Garden Project to be constructed; (4) receiving applications for payment from the contractor, and advising and directing the claimants in respect of their payment; and (5) exercising cost control by preparing a budget for the works, and overseeing actual expenditure against it; Mrs Lejonvarn owed a duty to exercise reasonable skill and care.”
“(1) Where a party voluntarily tenders skilled advice or services in circumstances where she knows that advice will be relied on by the recipient, that voluntary assumption of liability is the appropriate test for whether a duty of care comes into existence, and it is not necessary separately to consider whether it would be fair, just and reasonable to impose a duty in those circumstances (see paragraphs 59 and 60); Customs & Excise Commissioners v Barclays Bank plc[2006] UKHL 28 ;[2007] 1 AC 181 ;[2006] 2 Lloyd’s Rep 327 ;[2006] 3 WLR1 ;[2006] 4 All ER 256 and White v Jones[1995] 2 AC 272 applied. (2) In a case where the relationship between the parties is akin to contract, it is unnecessary to make a further enquiry into whether it would be fair, just and reasonable to impose liability, that question being subsumed in the determination of the question of whether there had been an assumption of responsibility (see paragraphs 63 and 64); Henderson v Merrett Syndicates Ltd.[1994] UKHL 5 ;[1995] 2 AC 145 ;[1994] 3 All ER 506 , applied. (3) Positive obligations are the realm of contract, whereas negligence is concerned with breach of a duty to avoid doing something or doing something badly. In negligence, a continuing failure to perform a positive act will not sustain a cause of action in negligence (see paragraph 68); General Accident fire & Life Assurance Ltd v Tanter (“The Zephyr”)[1985] 2 Lloyd’s Rep 529 , followed. (4) Whether there had been a voluntary assumption of liability so as to give rise to a duty of care and the scope of that duty is a matter of mixed fact and law having regard to all the circumstances on which the findings of the judge will be held to be of considerable significance. In the present case, there have been no findings as to what services Mrs Lejonvarn actually provided and so no definitive statement of the nature and extent of the duty owed could be provided (see paragraphs 90 and 91).”
“Ground 3: The judge erred in holding that Mrs Lejonvarn had an obligation at common law to undertake and/or owed the Burgesses a duty of care in respect of the design of the Garden Project 101. This reflects paragraph 14.3 of the particulars of claim. The judge found that a duty of care was owed to exercise reasonable skill and care in the provision by Mrs Lejonvarn of the professional service of “preparing such designs as were necessary to enable the Garden project to be accurately priced and constructed”. 102. The judge qualified this duty by finding that the duty meant that the designs be sufficient “to enable a fairly firm budget estimate to be prepared” rather than to enable them “to be costed with an absolute degree of precision”. 103. On behalf of Mrs Lejonvarn it is contended that it was wrong for the judge so to conclude. In particular: (1) As to the alleged duty to prepare designs to enable the Garden Project to be accurately priced, the particulars of claim do not allege that Mrs Lejonvarn failed to exercise reasonable skill and care in performing such a duty, nor is it alleged that any such failure caused the Burgesses to suffer loss. In those circumstances the judge should have declined to make any finding in relation to the question of whether a duty of care was owed in the provision of the service. (2) The qualified duty found by the judge confuses and elides the content of any contractual duty which an architect (or project manager) might owe to his (or her) client with the question of what an architect’s (or project manager’s) duty might be to third party at common law absent any contractual relationship. (3) A duty of care is owed in order to prevent loss and damage but the nature of the loss which the duty found is aimed at preventing is not identified. (4) The duty found involves a positive obligation to act in a specific manner in the future. (5) As to the alleged duty to prepare designs to enable the Garden Project to be constructed, this would require Mrs Lejonvarn to go to considerable time and expense to perform services for the Burgesses free of charge until her involvement in the Garden Project was brought to an end. This is not the function of the law of tort, there is no previous case in which an analogous duty has been found to exist and to extend the law in this way is not justified as a matter of principle or authority. 104. In relation to the alleged duty to prepare designs to enable the Garden Project to be accurately priced, the judge was asked to make findings by reference to the services set out in paragraphs 14 and 15 of the particulars of claim and cannot be criticised for so doing. 105. Mrs Lejonvarn said that she would do what was necessary for the project to be priced out accurately and prepared drawings to enable this to be done. Pricings were then provided which (based on the£130,000 budget figure) Mrs Lejonvarn claimed were accurate and were being adhered to. 106. This is not therefore a case in which Mrs Lejonvarn merely said she would produce designs to enable the work to be priced, but it is a case in which she did so. Further, as the email exchanges of8 March 2013 make clear, Mrs Lejonvarn knew that costs and a reasonably accurate budget were crucial to Mr Burgess and the decision to use her rather than Mr Enright. 107. It is correct that there are some passages in the judgment in paragraph 193 which suggest that there was a positive obligation to produce designs. There was no obligation to do design work, but the design work which was done had to be done with reasonable skill and care so as “to enable a fairly firm budget estimate to be prepared”. 108. I would accordingly define this duty as follows: “In so far as Mrs Lejonvarn provided designs to enable the Garden Project to be priced, thereby performing a professional service acting as an architect and project manager, she owed a duty to exercise reasonable skill and care to ensure that they were sufficient to enable a fairly firm budget estimate to be prepared.” 109. In relation to the alleged duty to prepare designs to enable the Garden Project to be constructed, paragraph 15 of the particulars of claim avers that detail design work was done and revisions to the Enright design made. The judge found at paragraph 200 that she did in fact undertake detailed design work. In doing so she had to act with reasonable skill and care. 110. The judgment at paragraph 201 goes rather further than this and suggests that there was a duty in the following terms: “If an architect should have appreciated the need for appropriate designs to be prepared beyond those which had in fact been prepared then Mrs Lejonvarn ought to have used reasonable skill and care in ensuring that those further designs were prepared either by a professional or by the contractor provided that, in the latter case, she had reasonable grounds to be satisfied that the contractor had sufficient competence and experience to prepare the appropriate designs and was in fact doing so.” 111. I consider that the judge has here been drawn into matters which depend upon a more detailed consideration of the evidence and of the facts. In my judgment for present purposes the judge should have confined himself to the terms of paragraphs 14 and 15 which were the tasks for which it was alleged that responsibility had been assumed. 112. I would accordingly define this duty as follows: “In so far as Mrs Lejonvarn provided designs to enable the Garden Project to be constructed, thereby performing a professional service acting as an architect and project manager, she owed a duty to exercise reasonable skill and care.” (1) As to the alleged duty to prepare designs to enable the Garden Project to be accurately priced, the particulars of claim do not allege that Mrs Lejonvarn failed to exercise reasonable skill and care in performing such a duty, nor is it alleged that any such failure caused the Burgesses to suffer loss. In those circumstances the judge should have declined to make any finding in relation to the question of whether a duty of care was owed in the provision of the service. (2) The qualified duty found by the judge confuses and elides the content of any contractual duty which an architect (or project manager) might owe to his (or her) client with the question of what an architect’s (or project manager’s) duty might be to third party at common law absent any contractual relationship. (3) A duty of care is owed in order to prevent loss and damage but the nature of the loss which the duty found is aimed at preventing is not identified. (4) The duty found involves a positive obligation to act in a specific manner in the future. (5) As to the alleged duty to prepare designs to enable the Garden Project to be constructed, this would require Mrs Lejonvarn to go to considerable time and expense to perform services for the Burgesses free of charge until her involvement in the Garden Project was brought to an end. This is not the function of the law of tort, there is no previous case in which an analogous duty has been found to exist and to extend the law in this way is not justified as a matter of principle or authority. “In so far as Mrs Lejonvarn provided designs to enable the Garden Project to be priced, thereby performing a professional service acting as an architect and project manager, she owed a duty to exercise reasonable skill and care to ensure that they were sufficient to enable a fairly firm budget estimate to be prepared.” “In so far as Mrs Lejonvarn provided designs to enable the Garden Project to be constructed, thereby performing a professional service acting as an architect and project manager, she owed a duty to exercise reasonable skill and care.”
“In providing the professional service acting as an architect and project manager of project managing the Garden Project and directing, inspecting and supervising the contractors’ work, its timing and progress Mrs Lejonvarn owed a duty to exercise reasonable skill and care.” (1) There is no previous case in which a common law duty of care to avoid economic loss has been found to arise in connection with the supervision of another’s work. (2) It is particularly inappropriate for such a duty to arise in circumstances where, as here, no duty of care is owed by the person executing the work. (3) The duty found by the judge involves a positive obligation to act in a specific manner in the future. That is the function of the law of contract, not of tort. (4) There was no reasonable reliance through choosing not to utilise Mr Enright. He as not to be employed to act as a supervisor or indeed in any professional capacity. “In providing the professional service acting as an architect and project manager of project managing the Garden Project and directing, inspecting and supervising the contractors’ work, its timing and progress Mrs Lejonvarn owed a duty to exercise reasonable skill and care.”
“Ground 4: The judge erred in holding that Mrs Lejonvarn owed the Burgesses a duty at common law to exercise cost control, prepare a budget for the works and oversee expenditure against the budget, and to review and advise in connection with applications for payment 114. This reflects paragraphs 14.5 and 14.6 of the particulars of claim. The judge found that a duty of care was owed to exercise reasonable skill and care in the provision by Mrs Lejonvarn of the professional service of “receiving applications for payment from the contractor, and advising and directing the claimants in respect of their payment” (14.5) and of “exercising cost control by preparing a budget for the works, and overseeing actual expenditure against it” (14.6). 115. The alleged breaches of this duty are set out at paragraph 31 of the particulars of claim which provides that: “The defendant was negligent in that she: 31.1. failed to produce an adequate budget for the works, in particular, breaking down the work elements necessary to complete the Garden Project, and attributing each element a reasonable proportion of the Cost; 31.2. failed to produce any other adequate budget for the works; 31.3. failed to appreciate that the Cost under-estimated the likely reasonable cost of carrying out the Garden Project, and to advise the claimants of that fact before the works commenced, or at all; … 31.7. failed to properly assess, and to advise the claimants in relation to, applications for payments made by the contractor, and directed the claimants to make payments in excess of the proper value of the work undertaken.” 116. On behalf of Mrs Lejonvarn it is submitted that the nature and extent of the breaches alleged highlight that the duty found is one which would need be agreed by contract rather than imposed by law. 117. It is further emphasised that the judge has not identified any specific act or advice which was relied upon by the Burgesses and to which the duty might attach. 118. In relation to applications for payment the judge found at paragraph 198 that “the receipt of applications for payment from the contractor and the provision of advice and direction to the Burgesses in relation to payment of such applications” was a service which Mrs Lejonvarn was providing. Having so found he was justified in finding that Mrs Lejonvarn owed a duty to exercise reasonable skill and care in so doing. Without a more detailed consideration of the facts it would not in my judgment be appropriate to be more specific as to what this duty required. 119. In relation to overseeing the budget the judge found at paragraph 199 that the pleaded service was one which Mrs Lejonvarn did in fact undertake. Again, having so found he was justified in finding that Mrs Lejonvarn owed a duty to exercise reasonable skill and care in so doing. 120. Consistently with the other specific duties I would define these duties as follows: “In providing the professional service acting as an architect and project manager of receiving applications for payment from the contractor, and advising and directing the claimants in respect of their payment Mrs Lejonvarn owed a duty to exercise reasonable skill and care.” “In providing the professional service acting as an architect and project manager of exercising cost control by preparing a budget for the works, and overseeing actual expenditure against it Mrs Lejonvarn owed a duty to exercise reasonable skill and care.” “The defendant was negligent in that she: 31.1. failed to produce an adequate budget for the works, in particular, breaking down the work elements necessary to complete the Garden Project, and attributing each element a reasonable proportion of the Cost; 31.2. failed to produce any other adequate budget for the works; 31.3. failed to appreciate that the Cost under-estimated the likely reasonable cost of carrying out the Garden Project, and to advise the claimants of that fact before the works commenced, or at all; … 31.7. failed to properly assess, and to advise the claimants in relation to, applications for payments made by the contractor, and directed the claimants to make payments in excess of the proper value of the work undertaken.” “In providing the professional service acting as an architect and project manager of receiving applications for payment from the contractor, and advising and directing the claimants in respect of their payment Mrs Lejonvarn owed a duty to exercise reasonable skill and care.” “In providing the professional service acting as an architect and project manager of exercising cost control by preparing a budget for the works, and overseeing actual expenditure against it Mrs Lejonvarn owed a duty to exercise reasonable skill and care.”
““It must consider in detail what the Defendant actually did during the course of her involvement with the Project and identify whether she acted (as alleged) in a way that was negligent whilst doing what she did.”
“Q. No. Well, these are the notes that in the last hearing, Mr Burgess, you said she had fabricated for the purposes of the trial, and that was not a case that was put to the defendant, [and] the Judge clearly did not accept it. I want to draw your attention, please, to the next page on the right hand side, about two thirds of the way down, it says “Jason says he wants cash for his own reasons, and that is between him and Przemek”, and that is Hardcore, is it not, or Jarek, that is JL4 Build, yes? A. That’s what she says, yes. Q. And then underneath that she says “I can’t take cash though”, does she not? That is what it says? JUDGE BOWDERY: Where is this? This is page 15? MR FLANNERY: It is the next page, my Lord, on the right hand of the two pages, two thirds of the way down, “Jason says he wants cash”
“Q. “Joe told us Peter wants those birches gone. Richard...” that’s the tree man - yes? – “… told Joe to stop all excavation near birches before I arrived” - yes? And then further down on the same page “Richard told Joe what he needs to do to roots exposed near those excavations. Joe needs to backfill with mulch or compost. I told Joe to stay clear away from the trees. Joe said he was just doing what Peter wants.”
“Q. And if you look at the first paragraph it is the essence of what was then the dispute between you? A. Yes. Q. Because you thought you were working to a budget of£78,000 , not£130,000 , do you see that? A. Yes.”
“Q. Well, can we agree on one thing, Mr Burgess, you and the defendant really fell apart because of money? A. Yes? Q. And you also had a view of her ability to manage builders and budgets, didn’t you - yes? A. The more I got into it, yes. Q. Nothing to do with the quality of the work, it was just --- A. At that stage, yes. Q. That was the one thing you were happy with - yes? A. Well, I didn’t really give it any thought. I assumed it was going according to plan. Q. Yes, and the emails that we know featured heavily around the 8th of July are all to do with the budget - yes? A. Yes.”
“I have a builder starting work on the 3rd April. He is not of your guys standard and won’t be able to build the desk. Do you think your guys will have time? Also, do you think your guys could do our garden? I will send you the plans. This would be a decent job for them.”
“We have looked at the figures and could do the job for 150k plus VAT…” ii) The plans were sent to Hardcore but the Defendant, in an email dated7th March 2013 to Hardcore, suggested that they could not give the “total price” until more design was specified; iii) On18th March 2013 , a number of emails were exchanged, all discussing, amongst other matters, whether Hardcore would give a cheaper price. In one of those emails, the Defendant described the proposed project team: “I see the project team as follows: 1. Labour: 2. Project Management and detail design (to include layout and procurement of hard materials such as paving, decking, possibly balustrades and design features (possibly a water feature), consideration of technical aspects such as drainage and building of raised beds and or supports, fences, barriers and or other built item such as storage cupboard and all related finishes.) ME. 3. Lighting: Mark DAVIS. 4. Trees: Richard Wassels 5. Planting and any pots or decorative features: Matt 6. Misc. items: underground drainage and irrigation. My guys are prepared to do all the “building work”, the ground works, the raised beds and terraces, the deck areas and stairs, and storage and the paved areas at the ground level and they can have it all ready to receive planting.” iv) On the27th March 2013 , as Mr Kordyl explained, he went on site with Jerry Latacz of JL4 Build because Mr Kordyl was waiting for a quotation for the groundworks from Mr Latacz. Only when work started did Mr Kordyl find out that Mr Latacz had subcontracted the groundworks to Mr O’Sullivan of London Piling; v) On9th April 2013 , Mr Latacz submitted his quotation of£37,000 plus VAT to Hardcore, added a mark-up of£8,000 for the first phase demolition and structural works and added allowances for sleepers, decking, steps, irrigation and fencing, to give a total of£78,500 ; vi) The Defendant sent Hardcore’s cost estimate to the Claimants on17th April 2013 , but made it clear that “Hardcore have given you a price for the 1st phase of works and as such have itemised what this comprises of. The subsequent stages are only budget estimates.”; vii) On28th April 2018 , the Defendant met with Mr Burgess to discuss pricing issues. Deputy Judge Alexander Nissen QC has already made findings including that the overall budget of£130,000 plus VAT was discussed. It was suggested by Mr Burgess that at this meeting the Defendant insisted that payments had to be made in cash. I reject that suggestion and I prefer the evidence of the Defendant that it was Mr Burgess who wanted to pay in cash. This is consistent with the Defendant’s email of9th July 2013 which stated: “I did not put it in an email because you wanted to pay in cash and for that reason I write it down in my notes…” a statement not challenged at the time by Mr Burgess; viii) Following this meeting, the Burgesses decided to proceed with Hardcore; ix) JL4 arranged to start on14th May 2013 and asked for a£7,000 advance payment; x) On15th May 2013 there was a meeting on site at which Mr Burgess, Mr Kordyl and Mr Latacz were present and it was announced that the Highfields Grove Estate could not allow concrete delivery lorries onto the Estate so the walls would have to be built using railway sleepers, rather than using piled concrete; xi) The Defendant’s contemporaneous notes recorded that this was discussed on27th May 2013 at a kick-off meeting and the Defendant noted: “Przemek says he is confident that despite the no concrete deliveries constraints doing it in sleepers will be fine with respect to Jarek’s orig estimate of 45... Przemek happy that with budget as generous as 130, room for the 45k to increase. Peter agrees” xii) Work on site started on or about22nd May 2013 . B. What happened after the commencement of works on site until9th July 2013 when the Defendant no longer worked on the Project? xiii) During this period it is the Claimants’ case that the Defendant; b) carried out detailed design; c) made changes to the design of the garden; d) carried out periodic inspections of the works; e) advised the Claimants regarding payments to Hardcore; As the Court of Appeal stated, it is necessary to make findings as to what services the Defendant actually provided and provide a definitive statement of the nature and extent of the duties owed by the Defendant; (a) Detailed design xiv) Insofar as it is alleged that the Defendant should have advised the Claimants that appropriate detailed designs from an architect or a structural engineer were required before a budget could be agreed or work could commence, as Deputy Judge Alexander Nissen QC noted, such a duty would be discharged if she had “reasonable grounds to be satisfied that the contractors had sufficient competence and experience to prepare the appropriate designs and was in fact doing so”; xv) I consider for the groundworks being carried out on site, she was entitled to rely upon the experience and expertise of the contractors employed by the Claimants to carry out their works. They did not need a structural engineer in order to implement the necessary works including retaining walls, all as indicated in the Mark Enright design; xvi) The drawings which the Defendant produced were produced after works commenced on site; xvii) The Defendant in her Closing Submissions submits that the relevant chronology was as set out below: “43. On23rd May 2013 , D went to site as part of an exercise she was undertaking at the time to try and establish the future finish floor levels for the stairs (BL3/36 [B/239]). On that day, she relayed to Mr Burgess that “[t]hings are moving along, on site and we are all in agreement about levels etc” [E2/564]; and that “I have adjusted the steps a little as the levels were not realistic” [E2/567]. That D was considering at this stage how the levels would work for the stairs is also confirmed in notes written by her on 24th May: [E5/Tab 4/12] “Idea is to look at circulation to confirm future steps will be logically laid out to suit exist’g levels. I’m pretty certain M.E’s plan has never tested anything. Need a section.” 44. Following on from this, D sent some sketches to the contractor ([E2/548A-548B], attached with the email at [E2/575H]) with a “quick diagram of the 3 initial retaining walls we are building at the present time”
“Would it help if I were to show you in a drawing how the edge of the lawn can still be curved despite Joe’s straight retaining section”
“Q. I would like to discuss with you since time pressures upon us, [is] the meandering path up the steep incline at the back, Joe reckons he can do it but I feel it might take longer than even he can estimate just because of the sheer steepness the issue will create”, yes, and then she says, “A set of gradual steps would be easier and a lot faster, and would not carry the same risks”, yes? A. Yes. Q. Now, before she leaves site that is about as far as it gets with that suggestion, yes? It is all it became, there was not a design change at that point, was there? It is just a suggestion to discuss, yes? A. I mean, I think it would have been a design change, because the plan that she was working to was what was eventually built, a sort of diagonal path straight across the bank, which is as Joe did build it. Q. OK. A. It was either one or the other. Q. Well, she is only suggesting that you discuss it at that point? A. Yes.”
“35. The Particulars of Claim (APoC, ¶29.1-3) plead three different allegations as to how D ought to have discharged her design and project management duties, which it is useful to bear in mind when considering the evidence of the tasks that she undertook for Cs: (1) first, giving a warning/advice to Cs that the construction works should not be commenced or continued without sufficient construction detail being in place (APoC, ¶29.3). That duty did not depend on D’s involvement in undertaking any particular aspect of the design, but 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) secondly: (i) identifying the need for the detail 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; and (ii) advising Cs of that need; and (3) thirdly, including in her designs (whether in her Drawing or otherwise) sufficient construction detail to enable her design to be built and, in particular, the structural elements identified in APoC, para. 29.1.” (1) first, giving a warning/advice to Cs that the construction works should not be commenced or continued without sufficient construction detail being in place (APoC, ¶29.3). That duty did not depend on D’s involvement in undertaking any particular aspect of the design, but 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) secondly: (i) identifying the need for the detail 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; and (ii) advising Cs of that need; and (3) thirdly, including in her designs (whether in her Drawing or otherwise) sufficient construction detail to enable her design to be built and, in particular, the structural elements identified in APoC, para. 29.1.”
“Q. You are not talking about how it is built, Mr Burgess, you are talking about what her design changes were. There is no design change in this drawing that creates this huge step, is there? A. I can't see a huge step on there, no.”
“29.1.0A structural detail showing the location, type and size of: (i) structural members such as earth retaining structures: (ii) foundations; (iii) works required to restrain the retaining structures, including the methods of fixing and restraining the timber sleepers and steel supports; (iv) surface water drainage; 29.1.0B detailing of interfaces of different materials and structural elements and the details of, in particular, the steps and retaining walls; 29.1.1 design detail, or specifications of work and materials, for the foundations, footings or backslope for the terrace walls (defects 1-2 and 20); 29.1.2 provision for land drainage within those parts of the Garden held within retaining walls (defect 6); and/or 29.1.3 design detail, or specifications of work and materials (namely the size, dimensions, quality, or modes of preparation or fixing) of the Steel Posts (as defined in the Schedule) or timber sleepers (defects 7 to 21);”
“F.1 What D was doing on site 70. On the facts, D assumed responsibility for: (1) arranging when site inspections ought to take place; (2) on those occasions when she visited site, or should have visited, inspecting the progress of the contractor’s work and ensuring (so far as possible by the application of reasonable care) that it complied with the requirements of the construction contract and conformed to the Enright Design; and (3) in the event that those inspections identified defects or non-conformances in the work, giving instructions to the contractor to remedy those. 78. D was in breach of duty because, having assumed responsibility for the task of inspection of the works, on her own account she did not actually undertake any inspections of the work. She would only identify whether the work was defective or non-conforming if she happened to see something obvious on site.”
“It is important to stress that this is not a duty to provide such services. It is a duty to exercise reasonable skill and care in providing the professional services which Mrs Lejonvarn did in fact provide in relation to the Garden Project. She did not have to provide any such services, but to the extent that she did so she owed a duty to exercise reasonable skill and care in the provision of those services.”
“(b) Summary of applicable principles [218] In the light of these various authorities, I would summarise the legal principles relating to an architect’s obligation to inspect as follows: (a) The frequency and duration of inspections should be tailored to the nature of the works going on at site from time to time: see Corfield v Grant and para 8-240 of Jackson and Powell. Thus it seems to me that it is not enough for the inspecting professional religiously to carry out an inspection of the work either before or after the fortnightly or monthly site meetings, and not otherwise. The dates of such site meetings may well have been arranged some time in advance, without any reference to the particular elements of work being progressed on site at the time. Moreover, if inspections are confined to the fortnightly or monthly site meetings, the contractor will know that, at all other times, his work will effectively remain safe from inspection. (b) Depending on the importance of the particular element or stage of the works, the inspecting professional can instruct the contractor not to cover up the relevant elements of the work until they have been inspected: see Florida Hotels Pty Ltd v Mayo(1965) 113 CLR 588 and para 8-241 of Jackson and Powell. However, it seems to me that such a situation would be unlikely to arise in most cases because, if the inspecting officer is carrying out inspections which are tailored to the nature of the works proceeding on site at any particular time, he will have timed his inspections in such a manner as to avoid affecting the progress of those works. (c) The mere fact that defective work is carried out and covered up between inspections will not, therefore, automatically amount to a defence to an alleged failure on the part of the architect to carry out proper inspections; that will depend on a variety of matters, including the inspecting officer’s reasonable contemplation of what was being carried out on site at the time, the importance of the element of work in question and the confidence that the architect may have in the contractor’s overall competence: see Sutcliffe’s case and para 8-242 of Jackson and Powell. (d) If the element of the work is important because it is going to be repeated throughout one significant part of the building, such as the construction of a proprietary product or the achievement of a particular standard of finish to one element of the work common to every room, then the inspecting professional should ensure that he has seen that element of the work in the early course of construction/assembly so as to form a view as to the contractor’s ability to carry out that particular task: see the George Fischer Holding case. That accords with Mr Jowett’s evidence in the present case, with which Mr Salisbury agreed. (e) However, even then, reasonable examination of the works does not require the inspector to go into every matter in detail; indeed, it is almost inevitable that some defects will escape his notice: see East Ham BC v Bernard Sunley & Sons Ltd[1965] 3 All ER 619 ,[1966] AC 406 and para 8-239 of Jackson and Powell. (f) It can sometimes be the case that an employer with a claim for bad workmanship against a contractor makes the same claim automatically against the inspecting officer, on the assumption that, if there is a defect, then the inspector must have been negligent or in breach of contract for- missing the defect during construction. That seems to me to be a misconceived approach. The architect does not guarantee that his inspection will reveal or prevent all defective work (see Corfield v Grant). It is not appropriate to judge an architect’s performance by the result achieved (see para 8-238 of Jackson and Powell). To that extent, therefore, I agree with the points made in paras 49 and 50 of the written opening prepared by Mr Bartlett QC and Mr Hamilton on behalf of HTA.”
“As is well known, the architect is not permanently on the site but appears at intervals, it may be of a week or a fortnight, and he has, of course, to inspect the progress of the work. When he arrives on the site there may be very many important matters with which he has to deal: the work may be getting behind-hand through labour troubles; some of the suppliers of materials or the sub-contractors may be lagging; there may be physical trouble on the site itself, such as, finding an unexpected amount of underground water. All these are matters which may call for important decisions by the architect. He may in such circumstances think that he knows the builder sufficiently well and can rely upon him to carry out a good job; that it is more important that he should deal with urgent matters on the site than that he should make a minute inspection on the site to see that the builder is complying with the specifications laid down by him… It by no means follows that, in failing to discover a defect which a reasonable examination would have disclosed, in fact the architect was necessarily thereby in breach of his duty to the building owner so as to be liable in an action for negligence. It may well be that the omission of the architect to find the defect was due to no more than error of judgment, or was a deliberately calculated risk which, in all the circumstances of the case, was reasonable and proper.”
“Q. And photograph 124, please, which my learned friend took you to, a few minutes ago. A. Well, I am sorry, 1 have closed the file. That is - there she is. Q. Now, could you remove that 124 from the - from the bi - from the bundle and if you turn it on its side, let us see if we can finally credit or discredit the infamous encroaching blue lines theory, by looking at the left of that photograph and seeing, what I hope you will agree is, the last steel post to that lower wall, yes? A. Yes. Q. And would you say that it stopped short of the boundary of the edge of the building on the right, by a couple of feet? A. It might help if you turn back to page 54. lam sorry if that is inconvenient, but there you can see the survey drawing shows the last steel post, and then draws the wall as if it is going on past it. Q. Yes. A. And that is what the blue dotted line has reproduced. Q. So, would you say that photograph 124 is - is evidence as to where the end of the wall lies, in relation to the end of the building? A. It is - as far as I could tell from this, using the joints in the paving as a square to work from, it is about a flag - a paving flag back from the comer of the building. Q. And can you look then at A55 where you have got some pink shading. Would you say that that accurately represents the end of the wall rather than the blue lines? A. Probably. It - it is about right. But what I can say with absolutely certainty is where those lines are dotted on, and I can tell that they come from the preceding drawing. They are simply, the - the man abandoned the thing, he just did not mind where he finished. Q. So, it is a question of draughtsmanship rather than construction? A. Yes, and I would be embarrassed if a drawing of this quality had ever been produced by anyone and got out of the door, in any office I have ever run.”
“31. There are two separate issues that need to be determined, that D’s submissions do not distinguish. (1) The first is how a reasonably competent architect would have approached the task of preparing a budget, and whether D met that standard. Mr Armes has addressed that ([C/126], para. 10.23.6) and concludes that the various elements that formed the budget were not costed. (2) The second issue is whether the Budget Sum was in any event correct (because, unless it was incorrect, Cs could not have suffered loss). That does not depend on evidence of architectural practice and there was no need for Mr Armes to consider it. It is true that he notes that “it would not normally be possible for an architect to know if the budget was adequate” (para. 10.23.6(2)) but in circumstances where D held herself out as undertaking that task, that cannot help her. A professional who trespasses into the territory of an unfamiliar discipline will ordinarily be held to the standard of ordinary competence that he has professed to have.”
“Cs accept that their claim based on the difference between what they have in fact incurred, as against what they would have incurred had they proceeded with Enright, is dependent on the budget claim and the Court’s acceptance that D was assessing the risk of the financial project on their behalf. Those losses are claimable if D was responsible not simply for the accuracy of her advice, but for the decision to enter the transaction, so that D’s responsibility resulting from negligence extends to the financial consequences of entering into the transaction. The closing submissions characterise the budget advice as “a specific aspect relevant to a broader decision” (para. 140.4.2) but that does not fit with the evidence. As D accepted, Cs saw no relevant distinction between the quality of Enright’s and Hardcore’s work (BL, Day 4/88B-D) and Cs considered that they had a fixed quotation from Enright.”
“It is the maximum amount (leaving aside the question of general damages) that they can say they suffered as a result of the decision to proceed with Harcore and D. If Cs should have been advised of the risk of proceeding with an inadequately-developed design it represents the amount that as a matter of factual causation they would have suffered had they decided to proceed with Enright rather than the Defendant and Hardcore.”
“Q. --- it’s level 3, but what is being priced there is simply to supply and install, bolted to the existing sleeper wall, 75 vertical sleepers, yes? A. Vertical sleepers, yes. Q. In other words, the level 3 retaining wall, the one that was reduced by three sleepers, was then clad with vertical sleepers, yes? A. Yes. Q. Well, that’s not a remedial work, is it, that’s a finishing, that’s a completion, yes? A. I would need to understand the reason for this variation to be able to confirm that, but on the face of it, it is cosmetic rather than structural. Q. Right, but that figure of£2,876 has found its way to the final account, at 1371, yes? A. Yes, the last but three.”
“Q. Yes, but we can look at that in due course. We can see that this involves - that’s the reduction in height, yes? A. Yes. Q. That’s not really a lot of work, is it? A. It shouldn’t be, no. Q. I mean, two men in a day, easily, yes? A. Possibly.” and assessed contemporaneously by Mr Ellis at around£1,100 (see [3/1261] Items 1-7), so the vast majority of this head of claim (including any allocation for the use of additional sleepers) relates to the cost of building another level (see also [Day 3/97 : B-F]): “Q. And I believe you’re going to agree that there’s a slight error on this page - and it’s not a trick question, but do you see at the top, “remove existing horizontal sleepers to level 2 to reduce to 2,300 height”; I think you mean “level 3”? A. Yes, sorry. Q. You do; and all the way down, I think, to number 8 on that page, 1261 - so, the top part of the page - is all referable to that reduction, yes? A. Yes. Q. And at a rough calculation, would you say that’s around£1,000 ? A. Approximately. Q. So, if that is carried across to page 151, even if you add your preliminaries and so forth, you would still say that almost£20,000 of that element would be referable to the creation of the new terrace? A. The only thing that I would say is that you are comparing my estimated figures with actual figures from Mark Enright’s final account, so you’re not really comparing apples and apples. Q. No, but you’re certainly giving a figure that reflects what you think would be the element of reducing the remedial work? A. Yes. Q. And I think we’ve established that additional terrace would only be possible once the trees were removed? A. Yes. The other thing to bear in mind is my figures are net figures, to which 20 per cent profit is added.”
“In principle, though, it was reduced in height, simply because it made the whole scheme more workable. Q: Yes, and that was only possible once the birch trees had gone? A: Correct” [Day3/72 : F]. Q. That’s not really a lot of work, is it? Q. I mean, two men in a day, easily, yes? A. Possibly.”
“Q. Right. So isn’t there at least an inference that no proofing was put on those posts, or at least a possibility? A. I suppose there’s a possibility.”