Summary judgment may be awarded where a claimant has no real prospect of succeeding on a claim or issue but the court should not conduct a mini-trial on disputed evidence.
An application to strike out a claim in negligence has failed in Jenni Glover and Littleton Glover v Fluid Structural Engineers and Technical Designers Ltd [2023] EWHC 3219 (TCC).
The claimants owned a residential property at Westbourne Grove, London, W11, which they wished to refurbish and extend to provide a new basement, loft space and complete internal reconfiguration. They employed a main contractor to undertake the works and Fluid to provide structural and engineering services in relation to the project.
The works commenced in September 2016 but were paused and recommenced on several occasions due to damage and cracking caused to the property and adjoining properties. Fluid produced a number of reports on the extent of movement, one of which contained admitted errors.
The claimants alleged breach of duty by Fluid in failing to: make fortnightly site visits; adequately report to the claimants whether the works were being executed in accordance with the contract documents and good practice and; adequately recording its visits to site. Had Fluid performed its duties the claimants would have had a clear picture of how the works were being performed and would not have incurred costs of £118,526 investigating unsustainable claims relating to design/construction by the project team. The claimants sought to recover that sum from Fluid and part repayment of Fluid’s fees of £15,730. The defendant argued that neither claim could succeed as a matter of law and sought summary dismissal.
The court decided it was at least arguable that Fluid was or should have been aware that its obligations extended to protecting the claimants’ interests as a whole in respect of the consequences of the risk of damage to adjoining properties from the works. Whether the costs claimed fell within the scope of duty agreed or assumed under Fluid’s appointment was a nuanced and fact-sensitive issue for determination at trial [Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20].
As for the repayment claim, it was necessary for the claimants to show in relation to each of the invoices in question either that the services were not performed at all or were performed so poorly as to be worthless. The single joint expert was highly critical of Fluid, particularly in respect of its failure to undertake fortnightly site visits or keep site inspection records and so it was at least possible that the claimants could establish their case at trial.
Louise Clark is a property law consultant and mediator
