Construction PI: Reliance On Specialist Advice And The Use Of Expert Evidence

In a recent decision the TCC found that construction professionals may discharge their duty to take reasonable care if they rely on the advice or design of a specialist, provided that they act reasonably in doing so. The Court also considered the reliance that can be placed on expert agreed statements.

Background

Cliveden Estates Limited was engaged by Co-operative Retail Services Limited (whose rights and obligations were later transferred to the Co-operative Group Limited ("CGL")) to develop a supermarket in Kent. Cliveden engaged consultants, appointing John Allen Associates Ltd to provide consulting civil and structural engineering services. Cliveden contracted with John Mowlem & Company Plc to build the supermarket. The contract between Cliveden and Mowlem contained a provisional sum for vibro compacting ground improvement and a Performance Specification for soil stabilisation by Vibro Replacement Techniques, which had been prepared by John Allen following receipt of specialist advice from a contractor, Keller. Mowlem sub-contracted the ground improvement works, including full design of the ground improvement scheme to Pennine Vibropiling Ltd. Following completion of the ground improvement scheme, a concrete slab was laid, and the supermarket structure built on that slab. The slab settled to such a degree, however, that the supermarket floor began to slope and remedial work was required. CGL commenced proceedings against John Allen, claiming damages for breach of the consultant's collateral warranty to provide 'reasonable skill care and diligence in the performance of its duties to the Client under the Appointment'. CGL claimed that John Allen failed to carry out adequate checks of the design calculations produced by Keller and ought to have advised CGL to seek advice from a geotechnical engineer. John Allen brought Mowlem into the proceedings, who then brought Pennine into the proceedings as a fourth party. On the second day of the trial, John Allen, Mowlem and Pennine settled the claim between themselves, the latter two parties taking no further part in the proceedings.

The decision

CGL's claim against John Allen failed at the first hurdle, the Court finding that vibro-replacement was not an inappropriate choice of technique, and was not inevitably going to fail. The Court did, however, go on to say that if this had not been the case, John Allen was nevertheless entitled to and did reasonably rely on the advice of Keller as a...