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England and Wales High Court (Technology and Construction Court) Decisions
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Cite as:  EWHC 3166 (TCC)
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL
B e f o r e :
| Mr Peter Burgess
Mrs Lynn Burgess
|- and -
|Mrs Basia Lejonvarn
Mr Louis Flannery QC and Mr David Sheard (instructed by Stephenson Harwood Solicitors) for the Defendant
Hearing dates: 16th 19th and 23rd July 2018
Crown Copyright ©
Martin Bowdery QC:
1. The Introduction;
2. The Preliminary Issues as reviewed and determined by the Court of Appeal;
3. The Evidence;
4. The issues of alleged breach by the Defendant;
5. The loss and damage allegedly caused by the alleged breaches;
6. Conclusions, Findings and Orders
i) The Judgment of Alexander Nissen QC sitting as a Deputy High Court Judge  WHC 40 (TCC) dated 15th January 2016;
ii) The Judgment of the Court of Appeal  BLR 277 dated 7th April 2017.
"1. The Claimant Respondents ("the Burgesses") own a residential property in North London called "Highfields". In 2012 they decided to carry out landscaping to their garden. A quotation of £155,837 plus a planting budget of £19,785 (both exclusive of VAT) was quoted by Mark Enright of the Landscape Garden Company Ltd. Although the Burgesses liked the plan produced by Mr Enright they regarded his quotation as being too expensive.
2. The Defendant Appellant ("Mrs Lejonvarn") was a friend and former neighbour of the Burgesses. She is an American qualified architect although she is not a registered architect in the UK. She worked for two architectural firms in the UK from 2007 to 2013 during which time projects were both discussed and one project performed for Mr Burgess's firm, Retail Human Resource plc ("RHR"). By spring 2013 she had decided to work on her own account and had adopted a trading name of Linia Studio.
3. The Burgesses decided to ask for Mrs Lejonvarn's assistance with their landscaping scheme ("the Garden Project"). She secured a contractor to carry out the earthworks and hard landscaping and a quotation was provided. She intended to provide subsequent design work in respect of the "soft" elements of the Garden Project such as lighting and planting for which she would charge a fee. The project never got that far. The Burgesses were unhappy with the quality and progress of the work and Mrs Lejonvarn's involvement came to an end in July 2013"
The Claimants' Factual Witnesses
The Claimants' Expert Witnesses
Murray Armes a Chartered Architect
Philip Ellis a Chartered Quantity Surveyor
The Defendant's Factual Witnesses
The Defendant's Expert Witnesses
Robert Evans a Chartered Architect
Mark Pontin a Chartered Quantity Surveyor
2. The Preliminary Issues as reviewed and determined by the Court of Appeal
i) Was a contract concluded between the Claimants and the Defendant, as pleaded in paragraphs 21 to 23 of the Particulars of Claim or otherwise?
ii) If so, what were its terms?
iii) On the assumption that the defects set out in Schedule 1 to the Particulars of Claim existed as at 9th July 2013, did the Defendant owe any duty of care in tort in light of the matters, and in the terms, pleaded in paragraphs 18 to 20 of the Particular of Claim, or otherwise?
iv) If so, what was the nature and extent of her duty?
v) Was a budget of £130,000 for the Garden Project discussed between the Defendant and either or both of the Claimants as pleaded in paragraphs 10(1)(e), 11, 16(3), 21(2)-(3) and 29(3)(a)(b) of the Defence, at any time before 5th July 2013, and if so when?
"E. The Garden Project: The Defendant's contractual duty
21. The conduct and exchanges of the parties set out above in paragraphs 9 to 13 above [sic], gave rise to a contract between the Claimants and the Defendant ("the Contract"). The Contract came into being on or around 15 May 2013, alternatively 28 April 2013, as a result of the matters pleaded in paragraphs 13 and 12 respectively.
22. By that Contract the Defendant agreed, in consideration of remuneration that she would draw out of the Cost (whether in the first phase or subsequent phases of the Garden Project), alternatively of the financial benefit that the Defendant would receive from her engagement on the Office Project:
22.1 to act as architect and/or project manager on the Garden Project, and to perform the services set out in paragraph 14 above; and
22.2 to procure the design and construction of the Enright Design at the Cost (allowing a reasonable margin as set out in paragraph 18.2).
23. It was an implied term of the Contract that the Defendant would exercise reasonable care and skill in the performance of those services, that term to be implied: by section 13 of the Supply of Goods and Services Act, because the Defendant was acting in the course of her business as Linia Studio; alternatively, because it was obvious, or necessary to give business efficacy to the contract."
"14. Between 6 March 2013 and 9 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 dated 15 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."
True copies of the Drawings and email referred to in this paragraph are attached to these Particulars of Claim as Appendix E.
"Summary and Conclusions
206. For the reasons set out above, I answer the preliminary issues in the following terms:
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 and 17 May 2013."
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."
Subject to that revision I would dismiss the appeal."
"(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  UKHL 28;  1 AC 181;  2 Lloyd's Rep 327;  3 WLR1;  4 All ER 256 and White v Jones  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.  UKHL 5;  2 AC 145;  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")  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 of 8 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."
"Ground 2: The judge erred in holding that Mrs Lejonvarn owed the Burgesses a duty at common law to inspect and supervise the works
92. This reflects paragraph 14.4 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 "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".
93. The judge qualified this duty by finding that it required "periodic inspection" rather than continuous attendance.
94. On behalf of Mrs Lejonvarn it is contended that it was wrong for the judge so to conclude. In particular:
(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.
95. As to (1), whilst there may be no such previous case, I can see no reason in principle why such a duty may not be owed where it is a professional service for which responsibility has been assumed and which is then performed negligently. If, for example, Mrs Lejonvarn had intervened during the course of her supervision of the work and negligently directed that a terrace be constructed in a particular manner with the consequence that it fell down causing economic loss then there would be a clear case of liability in the light of the general duty found.
96. As to (2), this is essentially the same argument which was raised in relation to the finding of a general duty of care. As already observed, whilst a relevant consideration, it does not mean that in the circumstances as found in this case no duty of care can or should arise.
97. As to (4), the judge found that the Burgesses relied on the provision by Mrs Lejonvarn of her professional services in relation to the Garden Project. Reliance does not require it to be established that, but for provision of services by the defendant, those very same services would have been performed by another. Reliance is generally sufficiently demonstrated by a claimant showing that he would have acted differently, and the judge so found in this case.
98. As to (3), I agree that it would not be appropriate for a duty of care to involve a positive obligation to act in a specific manner in the future. The duty found, however, is linked to paragraph 14 of the particulars of claim which avers that Mrs Lejonvarn performed the services there set out. It is accordingly alleged that she did provide the professional service of "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". In doing so she owed a duty of care to act with reasonable skill and care.
99. It is correct that the judge speaks of a duty of periodic inspection and does so in generalised terms rather than linked to findings as to what Mrs Lejonvarn actually did. There was a dispute between the parties as to the regularity of her attendance on site and the judge only refers to three such visits. Without a more detailed consideration of the evidence I do not consider that any duty of inspection can at this stage be expressed in such specific terms.
100. Whilst accepting that the judge was entitled to find that a specific duty arose, given the importance of the detailed facts I would define the duty in the following terms:
"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."
""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." (My emphasis)
""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."
3. The Evidence
i) Many disputes of fact;
ii) Many witnesses called whose evidence was of limited relevance to the key issues;
This scattergun approach to the principal criticisms of the Defendant's performance as Project Manager and Architect was unhelpful. The relevant events took place some five years ago when personal recollection of who said what and who did what are necessarily unreliable, particularly when the recollections of what happened can be influenced by the dispute and the hardening of attitudes caused by somewhat protracted litigation.
Factual Witnesses : Claimants
i) Main witnesses - Mr and Mrs Burgess;
ii) Witnesses who attended site and commentated on the Works - Robert Carr, Martin Platt and Russell Pigeon;
iii) Witnesses relevant to the remedial work - Philip Ellis and Adam Evans;
iv) Witnesses who lived or worked locally - Ivor Schlosberg and Robert Strong.
|28 March 13 (09:10) 2 April 13 (15:25)||Both away [E5/T.7/2, 7]|
|2 April (afternoon) 18 April||Only C1 here|
|19 April (06:55) 23 April (15:25)||Both away [E5/T.7/21]|
|23 April 9 May||Only C1 here|
|9 May (18:10) 14 May (15:25)||Both away [E5/T.7/26, 16, 7]|
|14 May (afternoon) 10 June||Both here|
|11 June (09:40) 20 June||Only C1 here [E5/T.7/35]|
|21 June (06:55) 2 July (15:25)||Both away [E5/T.7/35, 43]|
|1 July (afternoon) onwards||Both here|
Examples of his unsatisfactory evidence are as follows:
i) In the first hearing before Deputy Judge Alexander Nissen QC, Peter Burgess maintained that no budget figure of £130,000 had been mentioned despite the Defendant's contemporaneous Note of the Meeting of 28th April 2013;
ii) In relation to payments being made in cash, Peter Burgess said that what the Defendant had written contemporaneously in her notes was not true [Day 2/13 : B-H] :
"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".
JUDGE BOWDERY: I see.
MR FLANNERY: Yes, "That is between him and Przemek, I can't take cash though", do you see that?
Q. "I'll need to bill through Linia", yes?
Q. That is her company, right?
Q. So she is making it clear that at the meeting you were very keen to pay cash and you were also keen to pay the invoices through Mark Enright - sorry, through RHR?
A. No, that is totally untrue.
Q. Well, if you look at the left hand page, Mr Burgess, at the bottom, when I say the left, of the page where it says "Jason said". Near the bottom it says "He said he wouldn't get away with paying Mark Enright through RHR"?
A. I wouldn't get away with ---
Q. That is true, is it not?
A. That's what it says, yes. It's not true though. It's not true that I said that."
I prefer to accept the Defendant's evidence supported by the contents of the contemporaneous note which was written when the parties were still co-operating and were still friends;
In relation to the birch trees which, if they had remained, would have had a detrimental effect on the garden design, Peter Burgess also maintained that the Defendant's notes, written as a contemporaneous note and recording that Mr O'Sullivan had told her "Peter wants those birches gone", was not true [Day 2/58 : D 2/59 : D] :
"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."
A. Yes, that isn't true.
Q. Those notes are a contemporaneous record of what Mrs Lejonvarn remembered on the day, Mr Burgess, and you're now trying to say five years ago she is wrong. Might you be mistaken?
A. No, I'd be fairly certain on that. I know what happened with those trees and, as I say, if I'd wanted to prune - if I'd wanted to chop them down ---
A. --- I could have done ---
Q. Well, Mr Burgess ---
A. --- it in 2010."
Again, I prefer to accept the Defendant's evidence supported by the contemporaneous note.
"Q. And if you look at the first paragraph it is the essence of what was then the dispute between you?
Q. Because you thought you were working to a budget of £78,000, not £130,000, do you see that?
Mr Burgess confirmed that the dispute over £78,000 or £130,000 was the cause of the dispute and that they "fell apart because of money" [Day 2/63 : B-E] :
"Q. Well, can we agree on one thing, Mr Burgess, you and the defendant really fell apart because of money?
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?
They did not fall apart because of concerns about the quality of the work being carried out on site by Joe O'Sullivan . If the Claimants had any real concerns regarding the work they would not have continued to employ Mr O'Sullivan between 6th July and 19th September and pay him a further £65,000.
i) they were inspecting a building site where the Claimants were content to continue with the groundworks subcontractor for another two and a half months:
ii) the Joint Expert Surveyor, Mr Milnes, has given evidence as to whether or not the defects alleged by the Claimants were defects which required remedial work and his evidence has not been challenged by either party to this litigation.
"Q. So, you couldn't say whether it was once a week, or twice a week, or three times a week?
A. I would actually say it was more twice a week, rather than one. It could be three." [Day 3/108 : A-B].
Factual Witnesses: Defendant
" ...She expressed a degree of confidence in her own ability to manage projects, control budgets and to select, organise and approve payments for contractors. The Burgesses had no reason to disbelieve that she had such expertise and experience. Indeed, during the Bank Project Mrs Lejonvarn provided services of the type described... Although the subject matter of the Garden Project, namely earthworks and landscaping, was different from the subject matter of the Bank Project, which was more traditional construction, the principles of project management were the same. Moreover, Mrs Lejonvarn herself confirmed to the Burgesses that she had experience of landscaping works. The services she was providing were the same. In my view, the thrust of all of Mrs Lejonvarn's written communications is consistent with that type of service having been provided...
 By way of over-arching objection to the allegations, it was submitted on behalf of Mrs Lejonvarn that she cannot have assumed responsibility for the various services pleaded against her because she was an architect who neither possessed nor professed to have any particular expertise other than in respect of aesthetic design. I reject that submission. At no stage did Mrs Lejonvarn indicate that aesthetics were the limit of her expertise or ability. She readily took up the task of becoming involved in the Garden Project. If she had wanted the Burgesses to understand that she had no or no sufficient experience of earthworks and landscaping then it was incumbent upon her to dispel the impression that she had created that she had that experience. The e-mails which she sent in March 2013 professed no doubts in that regard. She portrayed herself and Hardcore as a team and assured Mr Burgess that Hardcore would be suitable for the project. She also said to Mr Burgess that she did have landscaping experience. Whilst I accept that Mrs Lejonvarn's specific expertise of aesthetics would have come to the fore once the earthworks had been completed that was not the only sphere of responsibility which she assumed."
Mr Kordyl also gave evidence in respect of Mrs Lejonvarn's involvement with the project and confirmed that he thought she was there "to look after the Claimants interests".
i) What happened prior to commencement of work on site from 6th March 2013 to 22nd of May 2013?a) Mr Burgess emailed the Defendant on 6th March 2013 [E1/357]:"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."The "guys" were Hardcore Builders Limited ("Hardcore") with whom both Mr Burgess and the Defendant had worked in the past.The plans were the Enright Plans sent to Mr Burgess on 25th July 2012 [E1/298] with a quotation for its implementation at £155,837 plus VAT [E1/302] plus an estimated planting budget of £19,785 plus VAT. Mr Burgess thought these prices were too high but Mr Enright was only prepared to reduce his price to £150,000 plus VAT. See his email dated 1st October 2012:"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 dated 7th March 2013 to Hardcore, suggested that they could not give the "total price" until more design was specified;
iii) On 18th 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 Wassels5. Planting and any pots or decorative features: Matt6. 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 the 27th 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) On 9th 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 on 17th 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) On 28th 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 of 9th 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 on 14th May 2013 and asked for a £7,000 advance payment;
x) On 15th 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 on 27th 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 about 22nd May 2013.B. What happened after the commencement of works on site until 9th 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. On 23rd 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". The aim of these sketches was to calculate the number of sleepers" which was itself dependent on the required height of the walls, and identified a short Level 3 wall at just 400mm high, with a larger wall (Level 4 on the sketches) below the birch trees. Later the same day, D messaged Mr Burgess to let him know that she was "working on the lay out. I believe we have to adjust some of it. Just in terms of the levels and how the terracing works out. I think there is one terrace too many. The two trees really govern it and I also want to reduce the sheer number, of retaining walls..." [E2/575J].45. On 27th May, 17.57, Mr Burgess asked if they could "go through your alterations to the plan at some point" [E2/575M]. D responded at 18.23 [E2/575M], noting that "[a]s it happens I was just working on your garden plan which I am trying to rationalise the levels above the ones we have just done... My concern now is to make the works progress quickly and smoothly and set all the levels now. The stairs are what I am working on in order to give the lay out the necessary breaks (landings) but still have it work with the levels. I am not changing anything in principle, but I need to adjust things nonetheless".46. Mr Burgess did not express surprise at any such 'adjustments', simply observing that "you are certainly on the ball" [E2/575Q]. The Drawings themselves were then sent by D to Mr Burgess later that same evening: [E2/575SA]. Again, there was no suggestion by Mr Burgess that any kind of change to the layout drawn on the Enright Plan would be unacceptable. They were sent to Hardcore about fifteen minutes later ([E2/575]), D noting that "I hope Peter will agree to the minor changes I made..." Subsequently, on 30th May D noted in an email to Mr Kordyl that "Peter is up for the adjustments I made to the design and I am going to meet him on the weekend to discuss further..." [E2/591].Having reviewed this chronology with the Defendant's and the Claimants' evidence and the contemporaneous documents, I accept that this chronology of what happened regarding the Defendant's drawings is accurate and correct and the drawings were never intended to be "detail designs" or to be used for construction purposes. They were produced to see how the finish/floor levels could be made to work on site in the context of the stairs and stair landings. They were not, on any view, produced negligently;(b) Made changes to the design of the garden
xviii) At the end of the evidence there appears to be three complaints about design changes:a) It is complained that an email dated 23rd May 2013 showed a design change, see Re-Amended Particulars of Claim, paragraph 290B.1. However, by 9th July 2013, none of the walls had been constructed in accordance with this alleged design change and thereafter none were;b) It is claimed that changes were made to the Enright Design, the first relates to how a straight edge lawn came to be built. However, after the dispute over the budget erupted in July the Defendant emailed Mr Burgess and stated:"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"Mr Burgess thereafter expressed delight with the design and, in any event, no cost is alleged to arise with regard to this alleged non-compliance;With regard to the changed design of the so-called meandering path, Mr Burgess accepted in his oral evidence that before the Defendant left the Project, she was only suggesting that the Claimant discuss any proposed change, see [Day 2/38 : F-G] :"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."On any view, these alleged changes to the design of the garden were not produced negligently;(c) Periodic Inspections
xix) This part of the history of the project is difficult to fathom. The Claimants' own architectural expert states that he "can find nothing in the correspondence that provides evidence that inspections were carried out" [C/117/10-18.4]. Nor I find, having read and heard evidence from the architectural experts, would any architect be expected to inspect periodically, or otherwise, structural works and the groundworks of the type being carried out up to 9th July.
xx) However, the times at which the Defendant was on site and what she was doing on site is apparent from the correspondence. Mr Strong's evidence when cross-examined suggested the Defendant was on site two or three times a week. Some weeks that is correct according to the documentation but not throughout the period between May and July. I prefer the record of visits evidenced by the contemporaneous documentation rather than Mr Strong's somewhat vague recollection;
xxi) The records suggest:
15th May 2013 Defendant on site but no works underway; 17th May 2013 Defendant on site but no work underway; 22nd May 2013 Defendant on site discussing levels but no work underway; 24th May 2013 Defendant on site but did not go into garden because no one on site because of rain; 29th May 2013 Defendant had an accident and could not walk properly; 1st June 2013 Meeting on site to discuss removal of birch trees. A lot of evidence was given as to the removal of the birch trees. I consider that having heard all the evidence nothing sinister occurred and the removal of those birch trees was in the best interest of everybody and were a major contribution to the success of the eventual design of the garden; 13th June 2013 Further meeting on site to discuss the birch trees; 18th June 2013 Meeting on site to discuss the lawn; 19th June 2013 Further meeting where the Defendant wanted to check with Mr O'Sullivan the condition of the birch trees in the vicinity of the lawn; 2nd July 2013 The Defendant visited the site and had a long discussion with Joe O'Sullivan about rear incline and the Defendant took progress photographs after a complaint that not much work was taking place 5th July 2013 The Defendant with Mrs Burgess when the dispute over the agreed budget of £130,000 erupted.So in eight weeks from 15th May until 5th July 2013, the Defendant visited the garden ten times, but only eight times after work commenced. I accept the Defendant's evidence that this was the extent of her visits to the garden. Furthermore, given the number of contemporaneous emails and other documents, if there were further visits they would have been recorded in the contemporaneous documentation. I also accept the Defendant's evidence that:c) the visits in May were largely before work started;d) the visits in June were largely to discuss the birch trees and the lawn;e) the visits in July were to discuss progress and the budget with Mrs Burgess.However, I consider and so find that the Defendant was visiting the site and was inspecting the works periodically and sufficiently to review and to advise regarding applications for payment but she was not inspecting the structural work and groundworks for non-compliance. This is hardly surprising because most, if not all, of the work being carried out up to 9th July 2013 were structural works and groundworks which no architect could be expected to inspect as the architectural experts broadly agreed was correct;
xxii) As Deputy Judge Alexander Nissen QC found, it was up to the Defendant to review the applications for payment and to give advice as to whether the sum applied for was appropriate in the circumstances. Furthermore, the Defendant was responsible for exercising cost control by preparing a budget for the works and for overseeing expenditure against it. The spreadsheet she provided in July 2013 made it clear that she was monitoring expenditure against the budget agreed with the Claimants;(d) Payment to Hardcore
xxiii) The original price of £37,000 given by JL4 Build was for groundworks based on the construction of piled concrete retaining walls. This proved impossible, so the design was varied to use railway sleepers and JL4 asked to be paid on a daywork basis. Between May and July, interim payments were requested on a time and materials basis. The Defendant's evidence is that Mr Burgess was aware of this request and I accept the Defendant's evidence on this point. Again, it is supported by the contemporaneous correspondence which Mr Burgess did not query, see [E2/649, E2/680]. The following payment requests were forwarded to the Defendant and passed on to the Claimants:
17th May 2013 £7,000 Initial down payment 2nd May 2013 £7,193 Payment request to purchase 200 railway sleepers 30th May 2013 £12,000 Payment request for labour 30th June 2013 £20,600 Payment based on daywork rate reduced from £1,700 to £1,500 for ten days plus £5,600 for materials. This request was passed on to Mr Burgess, see [E2/649, E2/675, E2/680]; 30th June 2013 £3,600 Payment request for 100 sleepers.It is alleged that the Defendant 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 payment in excess of the proper value of the works undertaken.I disagree: -a) these payments were only interim payments and were not excessive or unreasonable in the context of the works being carried out;b) these payments were based on daywork rates and material costs as had been agreed with Mr Burgess;c) the Claimants carried on paying Mr O'Sullivan after 9th July 2013 on a similar basis:
xxiv) Events after 8th July 20188th July : Defendant produces a budget tracking spreadsheet in order to explain the current financial situation of the project, and explains that ''we are very close" to the £130,000 budget sum. Further, Joe states that she informs Peter Burgess that she anticipates 2 weeks to finish the groundworks phase [E2/746].In an email on 9th July at 08:45 [E2/761] the Defendant informed the Claimants that:"It is my responsibility to work in the best interests of my clients and as such I make great efforts to make clients aware of any potential problems, issues, or shortcomings that may affect the success of a project. I am not a Quantity Surveyor and as such I do not price jobs. I have also assembled an experienced team and offered to you their services which I have managed.I promised to work to a budget that we agreed, and that is exactly what I have done.Unfortunately I don't believe we will come to a mutually agreeable conclusion. I am sorry that this has ended our relationship but I cannot work under these circumstances.I don't want to leave you with an unfinished project so I will ask my contractors if they would be willing to continue with you directly. There are risks associated with this. Problems may arise on site that require someone to manage them with a knowledge of technical, logistical and design solutions. You will be exposed and vulnerable to cost increases, or unacceptable results in terms of how it is finished off or detailed. The fact that you do not have any technical design drawings for the stairs leaves them open to the interpretation of the builders. Nevertheless I wish you the best of luck."
4. The Issues of Alleged Breaches of Duty by the Defendant
"35. The Particulars of Claim (APoC, Ά29.1-3) 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, Ά29.3). 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."
Strengthening of the Lawn
"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."
i) the designs failed to include the construction details set out at paragraph 29.1 of the Re-Amended Particulars of Claim including:"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/or29.1.3 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);"
For any such structural design and associated structural details the Defendant acting competently was entitled to rely upon the skill, experience and expertise of the contractor doing this work.
Accordingly, the Defendant did not act negligently or in breach of duty of care by allowing the works to commence and/or continue on site without sufficient construction detail or a specification of works or by failing to advise the Claimants that such designs were necessary and/or that without them there was a risk that the works built without such designs could be unsafe.
"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."
The Defendant, on her own evidence, and in my view reasonably did not carry out any inspections of the ongoing structural and groundworks then being carried out. Applying the clear guidance from the Court of Appeal:
"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."
I cannot find that her inspections of these works were carried out negligently.
i) Many of the alleged defects are alleged to have compromised the structural integrity of the walls and rendered them unsafe. The Claimants' own architectural expert accepted that an architect would not be expected to identify structural defects;
ii) The Claimants, I consider, have done what Mr Justice Coulson (as he then was) warned against in McGlinn v. Waltham Contractors Ltd and Others  111 Con LR, that is to assume any claim for bad 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: see paragraph 218 of Judgment which stated:"(b) Summary of applicable principles 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  3 All ER 619,  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."
Item 5: The Damaged Bollard
Item 6: Land Drainage
Item 7: Steelwork Oxidation
Item 8 : Non-continuous steelwork columns
Item 9 : Steelwork cut from universal channel sections into T's
Item 10 : Steelwork bowed
Item 11: Bolts securing sleepers
I accept that evidence and, as such, no claim in negligence is established.
Item 12 : Missing Bolt Fixings
"I do not consider this defect to be of such severity that the defendant would have needed to take immediate action other than perhaps to enquire when the missing bolt or screw would be fitted. This fixing used visually appear from the photographs to be generally galvanised and whilst the exposed heads would eventually corrode, I am satisfied that using galvanised fixing rather than say stainless steel is not a defect which would require wholesale replacement of the same." [C/552]
Mr Milnes was not cross-examined and I accept this evidence. No case in negligence has been established.
Item 13: Use of steel sections to retain sleepers
Item 15: Steel post not high enough to support sleepers
Item 16: Sundry steel defects
Item 17: Gaps in sleeper jointing
Item 18: Defective sleepers
Item 19 : Bulging and bowing sleepers
Item 20 : Inadequate sleeper foundations
Item 21 : Timber preservation
Items 26 33 : Alleged non-conformances of as-built work with the Enright Design
i) was not accurate;
ii) shows the state of works as at 9th September not 9th July 2013;
iii) does not distinguish between temporary and permanent works;
iv) show the as-built terraces extending beyond the tree position, see cross-examination of Robert Evans [Day 5/146 : G 147 : G]:"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."
G. Budget Duties
"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."
As Deputy Judge Alexander Nissen QC found "the figure of £130,000 was the subject of detailed calculation by her even if all the details were not reported to Mr Burgess. She gave the budget figure at a time when she knew that Mr Burgess would not have proceeded with the works using her and Hardcore unless the budget figure was cheaper than the cost of employing Mr Enright".
i) Some of Mr Ellis' figures are unrealistic, such as £20,000 for preliminaries;
ii) Mr Ellis has included additional items as part of the as-built works not shown on the original Mark Enright Plan, such as fencing, a high sleeper wall at the boundary with No. 12 to the front edge of the lawn;
iii) Mr Ellis' exercise is based on pricing walls built with sleepers and steels, not the original method of piled concrete used by Hardcore to produce their price.
i) How the Defendant approached the task of preparing the budget was wrong or that
ii) The budget itself was incorrect
I certainly reject any uggestion that the budget was produced negligently as alleged by the Claimants in their original claim or their revised claim.
i) In producing an inadequate budget or an inadequate breakdown of that budget for the works before mentioning the Budget Sum to the Claimants as alleged at paragraph 31.1 of the Re-Amended Particulars of Claim;
ii) In failing to appreciate that the budget under-estimated the likely reasonable cost of the Garden Project or that the completion of the Garden Project within a budget of £130,000 plus VAT was unachievable as alleged at paragraph 31.3 of the Re-Amended Particulars of Claim;
iii) In failing to advise the Claimants of those matters as alleged at paragraph 31.1 and/or 31.3 of the Re-Amended Particulars of Claim.
The Duties in respect of applications for payment
i) 30% up front followed by
ii) 40% as an interim payment
iii) 30% on completion
5. The Loss and Damage Allegedly Caused by the Alleged Breaches
.1 The Global Claim
"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."
|Description||Amount (inc. VAT, where applicable and paid) (£)|
|Payments made up to 5 July 2013||Payments made up to 5 July 2013|
|Purchase of patio tiles||9,477.82|
|Sub-total for period||60,342.92|
|Payments made between 6th July and 19th September 2013||Payments made between 6th July and 19th September 2013|
|Payment to site contractor for works (Mr Jerry Lactaz)||2,160.00|
|Payment to site contractor for piling and earthworks (Mr Joe O'Sullivan)||65,100.00|
|Gravel and cement||532.80|
|Replacement of trees and vegetation damaged during the works||10,248.00|
|Sun-total for period||108,027.41|
|Payments made after 19th September||Payments made after 19th September|
|Mark Enright remedial costs payments||£181,075|
|Fees paid to construction professionals retained by them to advise in relation to, and specify, necessary remedial works||£8,330|
|Charged by the management company of the Property's estate to repair damage to a lighting bollard||£1,453.20|
"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."
i) decking installed after 9th July 2013, the Claimants accept the Defendant cannot be responsible for that work but it is all part of the gloibal sum;
ii) cost of felling birch trees;
iii) payment for electrical work and patio tiles not part of Mark Enright's quote;
iv) payments for whatever Mr O'Sullivan was asked to do by the Claimant after 9th July 2013, totalling some £65,000, for which remarkably there are no invoices.
I consider that the Claimants could and should have attempted to identify what actual, if any, losses were suffered as a result of the breaches alleged. To claim that the Defendant is liable for this global claim offends common sense and I find it wholly unsupported by the evidence which I have heard and read. The agreed budget was a realistic and practical budget. When the Defendant left the project, I have seen no convincing evidence why the Defendant, if allowed to finish the project, could not have completed the garden within budget with any changes and variations priced separately and to the satisfaction of the Claimants. The Defendant had the experience and expertise to compete this project if the agreed budget had been respected and had been acknowledged by the Claimants.
.2 Cost of Remedial Works
LINE 1 : Reinstallation of existing horizontal sleepers vertically (Level 1 Terrace) : £10,217.56
LINE 2 : Reinstallation of existing horizontal sleepers vertically (Level 2 Terrace) : £4,308.24
LINE 3: Reinstallation of existing horizontal sleepers vertically (Level 3 Terrace) : £2,876.74
"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?
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."
This is completion work which would have been carried out irrespective of the alleged 'defects' in the wall
Line 4: Reduction of sleeper walls and additional terrace: £15,950.15
"Q. Yes, but we can look at that in due course. We can see that this involves - that's the reduction in height, 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?
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?
Q. And at a rough calculation, would you say that's around £1,000?
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?
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."
So it appears that this work was only made possible once permission had been given for the birch trees to be felled, as was accepted by various witnesses. As Mr Ellis said: "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].
Line 5: RIW application to visible steelwork: £2,409.27
"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."
Adam Evans accepted the possibility that no RIW was carried out to the Level 3 wall. Further, as the application of RIW to exposed faces is, I consider, completion work: if it had been carried out as part of the initial works prior to 9th September 2013, it would not have been done for free, and the Claimants would have had to pay for it in any event. This I find is not a remedial cost for which the Defendant should be held responsible.
LINE 6: Ducting for future lights and irrigation: £1,168.57
LINE 7: Lawn and soiling including mid-level soakaway : £2,354.89
.3 Alleged overpayments : Re-Amended Particulars of Claim, paragraphs 33.5 33.6
.4 General Damages
6. Conclusions, Findings and Orders
1. Did the Defendant fail, negligently and in breach of a duty of care, to identify each of the alleged defects and/or non-conformances identified against numbers 1, 5 - 13, 15 - 21 and 26 - 33 of Schedule 1 to the Amended Particulars of Claim, as alleged at paragraph 26 of the Amended POC?
1. No, the Defendant did not.
2. In relation to the timing of the Defendant's inspections:
2.1 How are the services (of inspection) that the Defendant performed on site, to be characterised? Was she: (i) inspecting the contractor's work at periodic intervals, leaving to her own judgment the timing of those inspections; or (ii) inspecting only on given occasions?
2.2 In light of that, did the Defendant fail, negligently and in breach of duty, to plan her inspections to coincide with the contractor's commencement of the stages of work identified in paragraph 26.1 A of the Amended Particulars of Claim?
2.2 No, the Defendant did not.
3. If so, what was the recoverable loss (if any) suffered by the Claimants as a result of any such breach?
4. Were such designs as were produced or revised by the Defendant produced negligently and in breach of a duty of care because the designs failed to include the construction details alleged at paragraph 29.1 of the Amended POC?
4. No, they were not.
5. Did the Defendant fail, negligently and in breach of a duty of care:
5.1 to appreciate the need for those construction details, as alleged in paragraph 29.2 of the Amended POC?
5.2 to advise the Claimants that those construction details were necessary, and that there was a risk that works built without them would be unsafe, as alleged in paragraph 29.2 of the Amended POC? and/or
5.3 to allow the works to commence or continue on site without sufficient construction detail or a specification of works, as alleged in paragraph 29.4 of the Amended POC?
5.1 No, the Defendant did not.
5.2 No, the Defendant did not.
5.3 No, the Defendant did not.
6. If so, what was the recoverable loss (if any) suffered by the Claimants as a result or any such breach?
7. Did the Defendant fail, negligently and in breach of a duty of care, to:
7.1 Produce an adequate budget for the works before mentioning the Budget Sum to the Claimants, as alleged at paragraph 31.1 of the Amended POC?
7.2 Appreciate that the Budget Sum underestimated the likely reasonable cost of carrying out the Garden Project and that the completion of the Garden Project within a budget of £130,000 (ex VAT) was unachievable, as alleged at paragraph 31.3 of the Amended POC?
7.3 Advise the Claimants of those matters (in question 7.2), as alleged at paragraph 31.3 of the Amended POC?
7.1 No, the Defendant did not.
7.2 No, the Defendant did not.
7.3 No, the Defendant did not.
8. If so, what was the recoverable loss (if any) suffered by the Claimants as a result of any such breach?
9. Did the Defendant fail, negligently and in breach of a duty of care, to properly assess and advise the Claimants in relation to applications for payments made by the contractor, and in directing the Claimants to make payments in excess of the proper value of the work undertaken, as alleged at paragraph 31. 7 of the Amended POC?
9. No, the Defendant did not.
10. If so, what was the recoverable loss (if any) suffered by the Claimants as a result of any such breach?