“10. The Claimants’ claim against the Defendant alleges that it acted in breach of duty by failing to (i) make site visits fortnightly (or at an adequate frequency) during the structural works; (ii) adequately report to the Claimants whether the structural works were being executed generally in accordance with the contract documents and with good engineering practice; (iii) adequately record, or produce any documentation that records, its visits to site to consider the construction of the structural works. 11. As a result of those breaches, the Claimants did not have a clear picture of how the works were performed which resulted in discrepancies between how the Claimants reasonably understood the Works to have been performed and how they were actually performed. Not only did Fluid fail to produce written records of its site visits, but (some of) the limited documentation it produced was misleading – for example, in its report dated4 June 2019 the Defendant incorrectly advised that a two-stage underpinning process was being undertaken, when in reality – and as was admitted by the Defendant nearly 2 years later in its letter of response – this was wrong. 12. The Defendant’s breaches resulted in the Claimants incurring considerable costs investigating matters (primarily relating to negligent design/construction by members of the project team) which turned out to be unsustainable. Had the Defendant performed its duties, the Claimants would not have incurred those costs and would have immediately (and only) pursued claims under the non-negligent insurance policies. Accordingly, the Claimants claim the legal and investigation costs which they have incurred (the “costs claim”) and repayment of fees which they paid to the Defendant in relation to those duties (the “repayment claim”).”
“(a) The decision of the majority in Manchester BS, which at [6] sets out the six-stage checklist, is designed to provide a useful way of analysing whether an alleged duty of care properly correlated to the harm claimed. (b) It was, I think, primarily designed to analyse duties of care alleged to arise in novel situations which had not previously been considered by the courts, or where the type of loss claimed was unusual or stretched the usualcboundaries imposed by the law. (c) The checklist was not primarily intended to be applied by rote to the well-known and much-reported standard duties of care, such as those owed by doctors to their patients, or structural engineers to their employers, where the damage claimed is, respectively, the personal injury caused by a botched operation or the consequences of the errors in the structural design. (d) That said, I accept that the judgment of Lord Hodge and Lord Sales in Manchester BS sets out a useful checklist which does, even in a conventional case like this, act as something of a ‘sanity check’.”
“Fluid’s inadequate monitoring, inspection, and reporting created or materially contributed to creating a confused picture and/or the absence of a clear understanding or record of how the structural/underpinning works had been constructed. This resulted in the project team and the Claimants not having a clear record or understanding of how the structural / underpinning works had been constructed and resulted in the Claimants suffering loss as a result of them instructing investigations and/or bringing and defending claims”
“In a civil action the successful party will generally recover costs against the other party. In earlier days these were called party and party costs, or taxed costs, to be distinguished from solicitor and client costs, which was the term formerly used for the greater amount of costs, however reasonable, payable by the client to their solicitor. It would make nonsense of the rules about costs if the successful party in an action who has been awarded costs could automatically claim in a further action by way of damages the amount by which the costs awarded to them fell short of the costs actually incurred by them. This has naturally never been allowed, and it is hardly surprising that there is a dearth of authority on the point. Cockburn v Edwards is probably the only case in which such a claim was attempted but without success, the refusal being at Court of Appeal level (1881) 18 Ch. D 449 CA as, curiously, the extra costs had been allowed as damages below.”
“Cost of reports Subject to principles discussed in this chapter, it seems that the cost of experts’ reports and the like are recoverable as damages if their main purpose was to help the claimant deal with the defendant’s breach of contract, but (if at all) as costs in the proceedings if their main purpose was related to the conduct of the proceedings. There may possibly be circumstances where the claimant has a choice between making the claim as damages or as costs. A corporate litigant may also sometimes recover as costs the actual direct costs of expert assistance provided by its own staff.”
“At items 4 to 6 of Appendix 1, the Claimants seeks a repayment and/or abatement of the sums which they have paid Fluid in relation to (i) the service of the provision of monitoring, inspection and reporting services during the construction period of the works as set out at clause 17 of the Fluid Terms; (ii) inspections which were not adequately or at all performed and/or inspection reports which were not adequately or at all provided; (iii) inspections in relations to cracks and party walls issues set out in the June 2019 Report on the basis that the inadequate and/or lack of performance of these services amounted to a total failure of consideration and/or those services were not performed at all and/or were performed so poorly that they were worthless to the Claimants”
“- Ongoing coordination with the Architect and Contractor. - Submission of structural calculations to assist the party wall engineer. - Attendance at pre-start meeting 21/09/16. - Liaison with the contractor regarding further required investigatory works. - Issue of Plans, Details and Specification for Construction.”
“- Ongoing coordination with the Architect and Contractor. - Ongoing liaison with the Party Wall surveyors for 126 and 122 Westbourne Grove. - Issue of revised sketches and calculations for the party wall engineers. - Issue of Sections for Construction. - Review of revised temporary works.”
“- Ongoing coordination with the Architect and Contractor. - Ongoing design development.”
“3-013 As to the common law position, in spite of the frequency with which the question arises, the courts have not been entirely consistent in their approach to it: see, for example, the surveyors’ cases mentioned below. The first matter to consider in every case is the nature of the contract between the parties. A solicitor’s retainer to bring or defend an action is usually an entire contract. An agreement with an architect to provide the normal services as defined in the RIBA conditions of engagement is not entire, but severable into stages. In a contract of the latter kind there can be no dispute as to the defendant’s entitlement to be paid for those stages of the work which have been properly carried out. The crucial questions are: 1.In the case of an entire contract, what remuneration can be recovered where the defendant was negligent? and 2.In the case of a severable contract, what remuneration can be recovered for that part or stage of the work which was negligently performed? 3-104 This topic is discussed in the chapters on individual professions. The approach which is adopted in most cases, and which, it is submitted, is correct, is that where the defendant’s negligence renders the services provided valueless, the defendant is not entitled to recover (or to retain) any remuneration for the work in question. In any other case, where the defendant has substantially (albeit negligently) performed the work, the defendant is entitled to be paid the normal remuneration and the client must rely upon a remedy in damages. A more difficult question is whether there is an intermediate band of cases in which the defendant’s entitlement to fees is neither wholly extinguished by the negligence nor wholly preserved. In Mondel v Steel (which concerned a shipbuilder’s claim for the balance of the price of a ship) it was held that there could be an abatement of the price to reflect “how much less the subject matter of the action was worth, by reason of the breach of contract”
“Schedule 1C is a claim for defective design work. This is a claim in respect of professional services. Accordingly, the defence of abatement is not available. Multiplex's only remedy for unsatisfactory drawings which required revisions or modifications is a claim for damages for professional negligence. However, if there are some drawings which were so unsatisfactory that they were discarded altogether and no use was made of them, in my view Multiplex could refuse to make any payment whatsoever in respect of those drawings. However, any defence on this basis or any claim for repayment on this basis would not be a plea of abatement. It would simply be a contention that no payment should be made at all for professional services which were worthless.”
“I am satisfied that it is open to Dock Street as a matter of law to defend itself in relation to a claim for payment for services rendered by a professional by contending that all, or some specific part, of those services were either not performed at all or were performed so poorly that they were worthless. Insofar as the complaint only applies to a specific part of the contracted-for services, Dock Street may defend itself by reference to the value of that specific part. What Dock Street may not do, however, is to defend itself by contending that all, or some specific part, of the services were performed, but not fully or properly in every material respect, so as to seek a reduction of the price payable in relation to the whole or the specific part.”