EWJ June 2024 web - Journal - Page 101
A Construction Professionals' Scope
of Duty - How Far Does it Extend?
A recent case considers an application to strike out a professional negligence claim under CPR
3.4(2)(a) for wasted costs caused by delay and repayment of professional fees.
Glover and another v Fluid Structural Engineers & Technical Designers Ltd [2023] EWHC
3219 (TCC)
In the recent case of Glover and another v Fluid
Structural Engineers & Technical Designers Ltd [2023][1]
the court refused to strike out or dismiss a claim
against a structural engineer for wasted costs and repayment of fees. The court focused on whether to
grant the strike out by assessing the structural engineer’s scope of duty, and the circumstances in which
a party may claim repayment of the fees.
l In September 2016, the Works commenced at the
To recap the relevant Civil Procedure Rules (the
CPR):
l A court may strike out a claim where, amongst other
things, the statement of case discloses no reasonable
grounds for bringing or defending the claim (CPR
r3.4(2)(a)).
l In June 2019, Fluid produced a report which, as
property and subsequently, damage and cracking
were caused to the property and the adjoining properties. The cracking led to the Works being paused
and recommenced on multiple occasions. Fluid undertook several inspections and produced several reports in relation to the extent of the cracking and the
progress of the Works.
admitted by Fluid, contained an incorrect statement
regarding how Chase had undertaken the Works and
what it should have, but did not do. As a result,
Chase’s contract was terminated, and a replacement
contractor was appointed.
l The Works, originally due to be completed in
l A court may give summary judgment where: (a) the
February 2018, were not completed until 6 May 2021.
At completion, Glover had incurred costs due to the
delay and faced claims from the owners of the adjoining properties. Glover sought to recover these from
the parties involved in the works and/or their respective insurers.
claimant has no real prospect of succeeding on the
claim or issue (CPR r24.2(a)(i)); and (b) there is no
other compelling reason why the case or issue should
be disposed of at a trial (CPR r24.2(b)).
Where applications are made to strike out under CPR
r.3.4(2)(a) as disclosing “no reasonable grounds” for
bringing the claim and, or for summary judgment,
there is no difference between the tests to be applied.[2] The test for the proper grounds for strike out
and/or summary judgment was set out in the case of
ICI Chemicals & Polymers Ltd v TTE Training Ltd
[2007],[3] which said: “If the respondent’s case is bad
in law, he will in truth have no real prospect of succeeding on his claim or successfully defending the
claim against him, as the case may be. Similarly, if the
applicant’s case is bad in law, the sooner that is determined, the better”.
Glover’s claim and Fluid’s application
Glover brought a claim against Fluid on the basis they
had acted in breach of duty by failing to:
i. “make site visits fortnightly (or at an adequate
frequency) during the structural works;
ii. adequately report to the Claimants whether the
structural works were being executed generally in accordance with the contract documents and with good
engineering practice;
iii. adequately record, or produce any documentation
that records, its visits to site to consider the construction of the structural works.”[4]
Background
l The claimants (Glover) were the residential owners
and occupiers of a London property who sought to
refurbish and extend their property (such as a new
basement, a full loft space at roof level (the Works).
It was alleged that the breaches resulted in Glover
incurring considerable costs investigating matters (primarily relating to negligent design/construction by
members of the project team), which Glover would
have avoided if it had pursued claims under the insurance policies. Glover claimed the legal and investigation costs of £118,526.12 (the Costs Claim), and
repayment of fees which they paid Fluid in relation to
their alleged breach of duty (the Repayment Claim)
totalling £15,730.35.[5]
l The defendant, Fluid Structural Engineers & Tech-
nical Designers Ltd, (Fluid), were structural engineers
engaged by Glover under a written appointment for
structural and civil engineering services which incorporated the terms of the Association of Consulting Engineers (ACE) Agreement 1 (Design) 2009 (the
Appointment).
Fluid brought an application to strike out or dismiss
the Glovers’ claims saying that neither of Glover’s
claims could succeed as a matter of law and be allowed
to go to trial (the Application).
l Glover also appointed architects to provide services
in relation to the design and engaged a main
contractor (Chase) to undertake the Works under a
JCT standard form of building contract.
EXPERT WITNESS JOURNAL
99
JUNE 2024