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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> Hart Investments Ltd v Terence Maurice Charles Fidler (t/a Terence Fidler Partnership) & Anor [2007] EWHC 1058 (TCC) (30 March 2007) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2007/1058.html Cite as: [2007] PNLR 26, [2007] EWHC 1058 (TCC), 112 Con LR 33, [2007] BLR 526 |
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QUEEN'S BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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HART INVESTMENTS LIMITED |
Claimant |
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- and - |
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TERENCE MAURICE CHARLES FIDLER (T/A TERENCE FIDLER PARTNERSHIP) LARCHPARK LIMITED (IN LIQUIDATION) |
Defendants |
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PO Box 1336, Kingston-Upon-Thames KT1 1QT
Tel No: 020 8974 7305 Fax No: 020 8974 7301
Email Address: Tape@merrillcorp.com
(Official Shorthand Writers to the Court)
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MR GRAEME SAMPSON appeared on behalf of the First Defendant
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Crown Copyright ©
MR RECORDER ROGER STEWART Q.C:
Introduction
a. Failing to design any, or any appropriate scheme for the temporary support of underpinning, which surrounded a deep basement excavation; and/or
b. Failing to require the contractor to take precautions so as to support the underpinning when, it is said, Mr Fidler saw that the underpinning was unsupported.
a. that he had no contractual responsibility to the claimant for the temporary works, which included the propping of the underpinning;
b. that he owed no tortious duty to the claimant to prevent economic loss of the sort claimed in this action;
c. that, in any event, he did design for the contractor, an entirely appropriate scheme which is set out in a drawing number 2, version A, B or C, to which I shall again return later;
d. that he did not, prior to the collapse, see anything to suggest that the contractor had not carried out the scheme which he designed; and
e. that he did not, in any event cause the collapse in question.
The Issues
7. The issues which I have to consider are accordingly as follows:
a. the factual issue as to what, if any, design of the temporary works for the propping had been carried out by Mr Fidler prior to the collapse;
b. the factual issue as to what, if anything Mr Fidler observed of the nature of the excavations prior to the collapse;
c. the extent of Mr Fidler's contractual responsibility;
d. if necessary, whether Mr Fidler owed a tortious duty to the claimant in respect of the heads of loss, in respect of which claim is made in this action; and
e. whether any failings of Mr Fidler caused the collapse.
The Property
a. the continuing use of the premises as a residential care home;
b. the provision of a nursery and self-contained flats;
c. the provision of self-contained flats; or
d. a hotel.
Whichever of these four possibilities was undertaken by the claimant, it was a requirement of the planning permission that the front and side façades of the premises be retained, and it was, accordingly, always going to be necessary to have a façade retention scheme which would require propping in its temporary condition. The façade would, of course, eventually form part of the permanent works.
The Parties
The Contractual Arrangements
"The drawings also make it extremely difficult to set out the temporary works, as there is no setting out information. Finally, I am also of the opinion that there should be substantially more information, in respect of the underpinning methodology and how the bulk excavations can take place after underpinning, prior to the retaining walls being formed."
It is thus apparent that by that stage he was considering the temporary works necessary for the contractor to undertake the permanent works, and he was in particular considering the problems of bulk excavations and underpinning - although I am not certain as to the precise depth of the basement at that time.
"Dear Andrew,
Further to our recent meeting on site with Terry Fidler, I write to confirm what was agreed as follows:
? Terry will take over the responsibility for the whole of the structural design utilising design drawings and calculations so far produced by Alan Lipton. Terry will provide you with the benefit of his PI insurance with a current cover of £5m.
? The fee receivable by Terry from Hart Investments Limited should be £10,000 plus VAT.
? We shall make a contribution of £5,000 plus VAT to this fee. We are prepared to make such a contribution, bearing in mind our need for prompt receipt of structural information.
We are pleased that this matter has now been resolved, and we are confident that Terry will provide the information required when it is needed to ensure the proper progress of works."
No more formal contract was entered into between the claimant and Mr Fidler.
"As I have already indicated, I do not consider that the consulting engineer's duty of supervision extends to instructing the contractors as to the manner in which they are to execute the work, and I think that that is probably accepted by the first defendants to a large extent. What is said however, is that when the consulting engineers knows, or ought to know that the contractors are heading for danger whereby damage to property is likely to result, then he owes the contractors a duty of care to prevent such damage occurring. If he sees the contractor is not taking special precautions without which a risk of damage to the property is likely to arise, then he, the consulting engineer, cannot sit back and do nothing. I am not sure that the consulting engineer's duty extends quite that far, but even if it does, I do not believe that he is under a duty to do more than warn the contractors to take the precautions necessary, and in so far as those precautions consisted here of shoring, and providing temporary support and immediate blinding excavations in the vicinity of the party wall, I am satisfied that Mr Gabriel gave Mr Craven ample warning."
As appears, the learned Judge was there considering the duty to the contractors, but it appears likely that it would also have been doubtful as to whether a duty would have been owed to the employer.
"A solicitor is not a general insurer against his client's legal problems. His duties are defined by the terms of the agreed retainer. This is the normal case, although White v. Jones [1995] 2 AC 207 suggest that obligations may occasionally arise outside the terms of the retainer or where there is no retainer at all. Ignoring such exceptions, the solicitor only has to expend time and effort in what he has been engaged to do and for which the client agreed to pay. He is under no general obligation to expend time and effort on issues outside the retainer. However if, in the course of doing that for which he is retained, he becomes aware of a risk or a potential risk to the client, it is his duty to inform the client. In doing that he is neither going beyond the scope of his instructions nor is he doing "extra" work for which he is not to be paid. He is simply reporting back to the client on issues of concern, which he learns of as a result of, and in the course of, carrying out his express instructions. In relation to this I was struck by the analogy drawn by Mr Seitler. If a dentist is asked to treat a patient's tooth and, on looking into the latter's mouth, he notices that an adjacent tooth is need of treatment, it is his duty to warn the patient accordingly. So too, if in the course of carrying out instructions within his area of competence a lawyer notices or ought to notice a problem or risk for the client of which it is reasonable to assume the client may not be aware, the lawyer must warn him. I do not need to consider what would be the consequences if the lawyer does more than asked for, for example reads documents which he was not asked to read, and discovers a risk to the client."
The Design and The Collapse
What did Mr Fidler see?
What did Mr Fidler see on 3rd February?
"The excavation has been open for some five months, with the façade being retained for that period of time whilst the building has been gradually dismantled, through various stages to suit the various schemes, and the bulk excavations have been taking place."
The impression is not given of some sudden and frenzied activity over the two days since he was at the site, but rather at a more gradual process.
Causation
The Case in Tort
Conclusion