Duane Morris – Duane Morris London

A step too far?

- Third party consultants, and duty of care in tort.
- No duty of care owed in tort by a third party design consultant to a contractor with no direct contractual nexus.

Large infrastructure projects are often subject to intricate contractual relationships between the relevant stakeholders, and this will also include collateral warranties to cover any potential gaps in liability to mitigate potential effects of one of the participants in the contractual matrix becoming insolvent. Parties lower down the contractual chain may engage their own designers or consultants to discharge their obligations up the contractual chain. An interesting scenario arose in the recent case Multiplex Construction Europe Ltd v Bathgate Realisations Civil Engineering Ltd (Formerly Dunne building & Civil Engineering Ltd (In administration) (2) BRM Construction LLC (3) Argo Global Syndicate 1200 (2021) , and the two issues that were heard by way of preliminary issue.

The facts:

- The main contractor sub-contracted certain design works to the sub-contractor.
- In turn the sub-contractor sub-contracted certain design work to the designer (Second Defendant).
- There was a requirement pursuant to BS 5975 for certain independent design checks and approvals to be done by an independent third party. For that reason, and to discharge its contractual obligations to the main contractor, the sub-contractor engaged a firm of consulting engineers to do this, and issue the relevant certificates.
- The contractor alleged that defects issues arose because of design issues.
- The contractor issued proceedings against the sub-contractor and the designer.
- Judgment in default was obtained against both.
- The sub-contractor was in administration. The designer was uninsured. The consultant had gone into liquidation.
- The contractor pursued the consultants insurers.
- There were two preliminary issues that were dealt with by His Honour Judge Fraser, sitting in the TCC:

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The Guardian on Tuesday 30th March had an interesting article entitled “UK criticised for ignoring Paris climate goals in infrastructure decisions”. In summary, various luminaries, scientists, legal and environmental experts, have written a letter and to come out to say that:

- - The case concerning the expansion of Heathrow Airport, and the decision by the Supreme Court last year, has set a dangerous precedent, in effect allowing national infrastructure projects to go ahead at the expense of the agreed targets set in the Paris Agreement. In particular to hold global heating to well below 2C above pre-industrial levels.
  - The UK Government and the Supreme Court has obligations under the Human Rights Act 1998 (to safeguard the right to life).
  - Courts should be forcing Governments of signatory states to adhere to the commitments of the Paris Agreement.
  - The Cop26 is in the UK this year, and the UK should be championing the Paris Agreement.
  - The plans for new coal mine, new licences being issued for oil and gas exploration in the North Sea, scrappage of the Governments main green recovery measure, and the green homes grants for insulation and low carbon heating are concerning developments.

Continue reading “Climate change vs infrastructure projects- Can they co-exist?”