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24th April 2013

Hewitsons represent successful Claimants

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Lorna Carter of Hewitsons has acted for the successful Claimants in the case of West and another v Ian Finlay & Associates (A Firm) [2013] EWHC 868 (TCC) (16 April 2013).

The Judgment delivered by Edwards-Stuart J in the Technology and Construction Court (TCC) has held an architect liable to its residential property-owning clients for failure to exercise contractually-required reasonable skill and care in its design and inspection services on an extensive refurbishment project.

The Court held that in a contractual claim for negligence against a construction professional, a claimant had first to establish what would have happened if the professional had in fact exercised proper care and skill; if the claimant established that, had proper care and skill been used, he would have proceeded with the project in accordance with the professional's design, then the measure of damages would be the cost of remedying the defects, less any credit for higher costs which would have been payable for a proper design in the first place.

There was a net contribution clause within the contract which provided that: "...[the architect's] liability for loss or damage will be limited to the amount that it is reasonable for [the architect] to pay in relation to the contractual responsibilities of other consultants, contractors and specialists appointed by [the client]."

This was held not to be "unfair" under the Unfair Terms in Consumer Contracts Regulations 1999 (UTCCR 1999) but the court shared the parties' view that it did not refer to the main contractor. Potentially, a net contribution clause that reduces the architect's liability by reference to the contractor's share of responsibility could make a significant difference to the sum of damages to be paid but the clause did not so impact in this case.

The Court’s interpretation of the net contribution clause was influenced by regulation 7(2) of the UTCCR 1999, which requires the most favourable interpretation for the consumer to prevail if there is doubt over a clause's meaning.

The Claimants were entitled to recover damages in respect of the remedial work and various defects in the property, with interest awarded on actual expenditure at 7 per cent over base rate. They were also awarded general damages for inconvenience, distress and discomfort which did not include damages for the stress of litigation.

The Court was critical of the conduct of some members of the architect’s expert team and also of their insurers and how they had conducted the defence of the claim.

For further information, please contact Lorna Carter on 01223 532729 or click here to email Lorna.