“4. Paragraph 2.1 of the Appointment provides that: “The Client appoints the Consultant to carry out the Services, subject to the terms of this Agreement." 5. Paragraph 3.2.1 of the Appointment provides that “The Consultant warrants and undertakes that it shall exercise the Required Standard when performing the Services". 6. Clause 1.1 of the Appointment defines the "Required Standard" as: “all the reasonable skill, care and diligence to be expected of a qualified and experienced member of the Consultant's profession undertaking the Services on works similar in scope and character to the Project." 7. Clause 1.1 of the Appointment defines the "Services" as "the Basic Services and the Additional Services (if any)". It provides that the "Basic Services" are set out in Part 1 of Schedule 1. Part 1 of Schedule 1 of the Appointment provides that the Basic Services include: “Construction Design - Detailed drainage design to include all pipe sizes and a manhole schedule with invert and cover levels fully coordinated with all services on-site. - Drainage design strategy with full WinDes simulation modelling to discharge planning condition. - Lorry & Reach Stacker yard detailed joint layout - […] - Coordinated underground service duct drawing. - Detailed setting out drawing of yards and fence lines" 8. Clause 3.2.6 of the Appointment provides that: "The Consultant warrants and undertakes that it shall exercise the Required Standard not to cause or contribute to any breach by the Client of any Third Party Agreement provided that, where the Client notifies the Consultant of a Third Party Agreement after the date of this agreement, the Consultant is not required to act in any way that may increase its liability in excess of that which was reasonably foreseeable at the date of this agreement." 9. Clause 16 of the Appointment provides that: “Notwithstanding any provision of this agreement restricting the Client's right to assign or transfer the benefit or burden of this agreement, within five Business Days of receiving a written request from the Client, the Consultant shall: 16.1 enter into a deed of novation with the Client and the Contractor in the form attached at Schedule 7; and 16.2 enter into a Collateral Warranty in favour of the person who is the Client immediately before novation takes place."”
“17. Clause 2 of the Novation provides that: "The Employer is substituted and replaced as client under the Appointment by the Contractor and the Appointment will take effect as if the same has been entered into originally between the Contractorand the Consultant." 18. Clause 4 of the Novation provides that: "For the avoidance of doubt the Employer confirms that it hereby assigns to the Contractor all rights of action arising from the Appointment including any which have already arisen." 19. Clause 7 of the Novation provides: "7.1 The Consultant acknowledges and warrants to the Contractor that he has observed and performed and will continue to observe and perform all the terms and obligations on the part of the Consultant under the Appointment. 7.2 The Consultant acknowledges that the Contractor has relied upon, and will rely upon, the Consultant's performance of such terms and obligations prior to, on, and following the date of this Agreement. It is agreed that the Consultant shall be liable for all loss or damage suffered or incurred by the Contractor as a result of any breaches of such terms or obligations, irrespective of whether such losses were also suffered or incurred by the Employer (whether solely, or jointly with the Contractor, or otherwise) and irrespective of such loss or damage was suffered or incurredprior to the date of this Agreement." 20. By clause 9 of the Novation, the Claimant and the Defendant further agreed to amend the terms of the Appointment as set out in Schedule 2 of the Novation. 21. Schedule 2 of the Novation identifies the following services, among others, that the Defendant is to provide as part of the Basic Services under the Appointment: "001. Review entire Employer's Requirements documentation. 002. Comment on Employer's Requirements and advise accordingly."” "The Employer is substituted and replaced as client under the Appointment by the Contractor and the Appointment will take effect as if the same has been entered into originally between the Contractorand the Consultant." "For the avoidance of doubt the Employer confirms that it hereby assigns to the Contractor all rights of action arising from the Appointment including any which have already arisen." "7.1 The Consultant acknowledges and warrants to the Contractor that he has observed and performed and will continue to observe and perform all the terms and obligations on the part of the Consultant under the Appointment. 7.2 The Consultant acknowledges that the Contractor has relied upon, and will rely upon, the Consultant's performance of such terms and obligations prior to, on, and following the date of this Agreement. It is agreed that the Consultant shall be liable for all loss or damage suffered or incurred by the Contractor as a result of any breaches of such terms or obligations, irrespective of whether such losses were also suffered or incurred by the Employer (whether solely, or jointly with the Contractor, or otherwise) and irrespective of such loss or damage was suffered or incurredprior to the date of this Agreement." amend the terms of the Appointment as set out in Schedule 2 of the Novation. "001. Review entire Employer's Requirements documentation. 002. Comment on Employer's Requirements and advise accordingly."”
“a Defendant professional will not be found to have acted in breach of the obligation and/or duty to exercise reasonable skill and care so long as he acted in accordance with a body of competent professional practice. There are two elements to the Bolam test. The first element is that the standard of skill and care is determined by reference to members of the profession concerned, rather than the person on the Clapham omnibus. The second element is that the Defendant is acquitted of any culpability so long as his conduct finds support from at least one body of competent professional practice even if practitioners falling within a distinct body of competent practice would have behaved or advised differently.”
“The experienced surgeon may act in a particular way out of habit or from intuition. If his choice gives rise to damage to his patient he is sued for causing the damage by that action, not for failing to sit down and think about it in advance. If his action satisfies the Bolam test he is not liable; if it does not then he is liable however long and carefully he thought in advance about what to do. So in this case, the council is to be judged according to the standards of the reasonably skilful window designer and installer. Such a person would be entitled to the benefit of the Bolam test whether or not he had sat down and considered exactly which sort of lock to provide. The council is not to be made liable for selecting the same lock just because it did not make a reasoned choice.”
“Designers may be liable if the design that they produce is not one that is “buildable” having regard to ordinary competent standards of workmanship and/or if it could only be built with a high degree of supervision to ensure compliance by the Contractor.”
“1. If a breach of contract is one of two causes of a loss, both causes co-operating and of approximately equal efficacy, the Claimant can recover his loss in full on the basis that the breach materially contributed to the loss; 2. If one cause of a loss is the Defendant's breach of contract and another cause is the contractual responsibility of the Claimant, the Claimant will recover if he can establish that the cause for which the Defendant is responsible is an effective cause of the loss.”
“The sole question, apart from an express exception, must then be: “Was that breach of contract ‘a’ cause of the damage.”
“Judge Bowsher QC provided a helpful review of the authorities bearing upon questions of causation and stated: “The test is what an informed person in the building industry (not the man in the street) would take to be the cause without too much microscopic analysis but on a broad view. Where a loss has been occasioned by more than one cause, a Claimant must show on the balance of probabilities that the breach complained of caused or materially contributed to the loss complained of.”
“…. it is important that two matters should be borne constantly in mind. The first matter is that the burden of proving, on the balance of probabilities, that the ship was lost by perils of the sea, is and remains throughout on the shipowners. Although it is open to underwriters to suggest and seek to prove some other cause of loss, against which the ship was not insured, there is no obligation on them to do so. Moreover, if they chose to do so, there is no obligation on them to prove, even on the balance of probabilities, the truth of their alternative case. The second matter is that it is always open to a court, even after the kind of prolonged inquiry with a mass of expert evidence which took place in this case, to conclude, at the end of the day, that the proximate cause of the ship’s loss, even on a balance of probabilities, remains in doubt, with the consequence that the shipowners have failed to discharge the burden of proof which lay upon them.”
“Our procedural system is and remains an adversarial one. It is for the parties (subject to the control of the court) to define the issues on which the court is invited to adjudicate. This function is the purpose of statements of case. The setting out of a party's case in a statement of case enables the other party to know what points are in issue, what documents to disclose, what evidence to call and how to prepare for trial. It is inimical to a fair hearing that a party should be exposed to issues and arguments of which he has had no fair warning. If a party wishes to raise a new point, he should do so by amending a statement of case.”
“Part of being an expert witness is putting yourself in the shoes of an expert designer. I’m not sure if I should say this but I am almost of the view that it is a benefit that I am not the best designer as it gives me a better view of what the reasonably competent designer should do.”