No Duty Of Care Owed By Consulting Engineers To The Ultimate Site Purchaser

BDW Trading Ltd v Integral Geotechnique (Wales) Ltd [2018] EWHC 1915 (TCC)

This was a professional negligence claim brought by the claimant, a national housebuilding company trading as Barratt Homes and David Wilson Homes ("BDW"), against the defendant, a firm of consulting geotechnical and geo-environmental engineers ("IGL").

The issue complained of was in relation to IGL failing to give proper advice to BDW about the risk that materials containing asbestos ("ACMs") might be present within parts of the site which the claimant acquired for housing development ("the site").

The relevant facts

The site in relation to which the dispute arose was owned by Bridgend County Borough Council ("Bridgend") and comprised of the easterly built-up area and the westerly grassed-over area.

Bridgend intended to obtain planning permission for residential development with a view to selling the site for housing development.

At the time the site was being put out to tender, Bridgend invited IGL to provide a site geotechnical report. It was clearly expressed to IGL that the report should be capable of being relied upon by the prospective purchaser and it must be capable of assignment with warranties.

IGL proposed that the works be undertaken in two phases. Phase 1 involved a geotechnical desk study, including an examination of historical maps, and a trial pitting investigation with samples being taken for laboratory testing. The need for phase 2 depended upon the outcome of phase 1 desk study and the trial pitting investigations.

IGL excavated nine trial pits located mainly in the western area of the site. This was due to the issues associated with accessing the eastern part which housed buildings and underground services. Made ground was not encountered in any of the six trial pits located in the westerly parts of the site. As for the remaining three trial pits, limited and localised made ground had been found but there was no evidence of contamination by ACMs.

IGL went on to prepare a report in respect of phase 1 and recommended that a further inspection for signs of contamination takes place during site clearance. The report also stated that it was for Bridgend's use only and should not be passed to others without IGL's written consent. It did not however exclude the possibility of assignments to the prospective site purchasers.

BDW was interested in acquiring the site for development and began the process of collating information in respect of the same.

BDW...