Michele Carrington v American International Group UK Limited

A duty on a construction professional to review design information may arise during construction even where the original design is incomplete or materially deficient. The question depends on the contractual terms and whether circumstances make review necessary or prudent.

At the interlocutory stage, causation may be established by what the professional should have done. A professional cannot necessarily rely on a further breach which it would have committed to defeat causation. Whether concurrent conduct materially contributed to loss is ordinarily fact-sensitive and suitable for trial. A defective alternative claim may be struck out where it fails to link identified breaches to particular losses.

The claimant alleged that architectural and contract-administration services supplied for the refurbishment of her home were negligently performed. She relied principally on failures to provide adequate construction information and to review that information during the construction phase. She advanced alternative claims concerning inspection and certification of defective workmanship.

The defendant sought refusal of permission to amend, strike-out for breach of an unless order, and strike-out or summary judgment under CPR Part 3.4(2)(a) and CPR Part 24. The central issues were whether the pleaded duty to review was reasonably arguable, whether the pleaded causation case had a real prospect of success, and whether the alternative inspection claim was sufficiently particularised.

1. Duty to review. The claim that the defendant owed a continuing duty to review was reasonably arguable. The duty is not confined to cases where a complete design was previously produced. Subject to the contract, a professional responsible for supervision or inspection may be required to consider whether sufficient design information exists where circumstances make that necessary or prudent. The duty may arise where the design is incomplete, deficient, or absent in a material respect.
2. Causation. The claimant’s case was not defeated merely because the counterfactual question could be framed by reference to what the defendant would have done rather than what it should have done. It was at least clearly arguable that the proper discharge of the duty required the defendant to provide adequate information. A defendant could not rely on a further wrong of its own to break the chain of causation.
3. Whether the defendant’s breach caused or materially contributed to the loss, alone or together with any breach by the contractor, was a fact-sensitive question for trial. The contractor’s conduct did not necessarily deprive the professional’s breach of all causative effect. Concurrent-cause principles and the relevance of a material contribution could not be resolved summarily.
4. Inspection and certification claim. The alternative claim was fundamentally defective. It did not identify which losses resulted from the limited workmanship defects alleged, distinguish removal and replacement costs from consequential losses, or quantify any sums allegedly over-certified. That part of the claim had no reasonable prospect of success and was struck out.
5. The amendments were allowed subject to correction of a mathematical error and deletion of the inspection and certification claim. Relief from sanctions was granted under the three-stage approach in Denton v TH White Ltd [2014] EWCA Civ 906. Striking out the properly pleaded review claim would have been disproportionate. The claimant was given no more than 14 days to file and serve a final amended pleading, after which the matter was to proceed towards transfer to the Bristol TCC, mediation, a revised pre-trial review and trial timetable.