Negligence – Architect – Duty of care – Defendant involved in garden landscaping project for respondents – Dispute over increasing costs of project – Whether defendant acting negligently and in breach of duty of care in respect of project – Claim dismissed
The claimant married couple wished to landscape the garden of their house. After obtaining a quote from a landscape gardener, which they thought was too expensive, they asked for help from the appellant, a friend who had qualified as an architect in New York and who provided architectural services in London, although she was not a registered architect in the UK.
The defendant secured a contractor who gave a quote to carry out the earthworks and hard landscaping. The defendant herself intended to provide subsequent design work in respect of the “soft” elements of the project, including lighting and planting, for which she would charge a fee. In the event, the project never reached that stage because the claimants were unhappy with the quality, progress and rising cost of the work. Following an exchange of emails, the defendant’s involvement in the project came to an end.
The claimants brought proceedings against the defendant in both contract and tort, claiming that much of the work done during the period of her involvement was defective and that she was legally responsible for it. They sought to recover the difference between the actual cost of the project, including remedial works, and the amount that they had been told it would broadly cost. The maximum value of the claim was around £265,000. The defendant denied responsibility for the quality of the work carried out or that she had been responsible for procurement, project management, budgeting and cost control.
Held: The claim was dismissed.
(1) The defendant owed a duty to take reasonable skill and care insofar as a particular service was provided, a design was produced or inspection of the works was carried out. The defendant was in the process of assembling and procuring a capable and competent team to implement the garden project. The claimants’ claim for negligent design and project management lacked credibility and conviction. Where the claim went wrong was that, from the period the defendant was involved in the project, the works were specialist groundworks being carried out by a specialist groundworks contractor carried out to a design he was more than capable of carrying out including the specialist design of the temporary and permanent works necessary to achieve the finished levels required. The defendant was not a design and build main contractor subcontracting the construction work. She was an architect fully entitled to let them get on with their works to produce the necessary retaining walls and finished levels the design required. In the circumstances, such designs as were produced by the defendant were not produced negligently or in breach of a duty of care. 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.
(2) The claimants had done what Coulson J warned against in McGlinn v Waltham Contractors Ltd and others [2007] 111 Con LR, by assuming that any claim for bad workmanship against the contractor had to be automatically reflected in a claim against the defendant on the basis that if there was a defect, the defendant had been negligent for not identifying it and having it remedied. The frequency and duration of inspections had to be tailored to the nature of the works. The mere fact that defective work was carried out and covered up between inspections would not automatically amount to a defence to an alleged failure on the part of the architect to carry out proper inspections; that would 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 work in question and the confidence that the architect might have in the contractor’s overall competence. Reasonable examination of the works did not require the inspector to go into every matter in detail. The architect did not guarantee that his inspection would reveal or prevent all defective work. The claimants had made little or no effort to explain when the defendant should have identified the alleged defects.
(3) The claimants should have attempted to identify what actual, if any, losses were suffered as a result of the breaches alleged. To claim that the defendant was liable for a global sum offended common sense and was wholly unsupported by the evidence. The agreed budget was realistic and practical. When the defendant left the project, there was 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 complete the project if the agreed budget had been respected and had been acknowledged by the claimants.
(4) The problems the claimants faced was that their relationship with the defendant broke down because of the misunderstandings as to whether her budget was £78,000 or £130,000. The claimants were in no position to know, if they had not fallen out with the defendant, whether the garden project would have been completed within budget. On the balance of probabilities, the garden project could have been completed within the defendant’s agreed budget of £130,000 with any changes and variations priced separately. The global sum had been spent for various reasons which had no relation to any alleged breaches of duty and it could not be regarded as a foreseeable consequence of the alleged breaches of duty. The claimants entered the transaction when the budget was £130,000. The defendant’s budget was reasonable and competent. To pursue this claim suggested that the claimants were seeking to punish the defendant rather than seek fair and reasonable compensation for her alleged mistakes. The claimants’ alternative claim that the defendant should be liable for the difference between the budget sum and the competent budget that she ought to have identified, whilst more appropriate, failed because her budget was a reasonable and competent budget.
Seb Oram (instructed by Mayo Wynne Baxter Solicitors, of Eastbourne) appeared for the claimants; Louis Flannery QC and David Shard (instructed by Stephenson Harwood LLP) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read a transcript of Burgess and another v Lejonvarn
