MJS Projects (March) Limited v RPS Consulting Services Limited

In a professional negligence claim concerning allegedly defective engineering design, the court assesses the final design, rather than the design process in isolation. A design is not negligent merely because errors occurred during its development if those errors were corrected before construction and the final design could have been produced by a reasonably competent body of professionals. The design must nevertheless be buildable by ordinary competent workmanship and supervision.

The claimant bears the burden of proving breach and causation. Where construction defects caused the damage that had manifested by the pleaded date, an alleged design defect did not establish liability. The court also emphasised that parties are confined by their pleaded cases and must have fair warning of the issues to be decided.

The claimant was the contractor for a container park near Felixstowe Port and had subcontracted the design of the works to the defendant. Damage appeared around three Gatic slot drains in the container yard shortly after practical completion. The claimant alleged that the defendant’s design was negligent and in breach of contract, while the defendant relied on construction defects, including wrongly sized, misplaced and missing dowels, missing reinforcement and inadequate compaction.

The issues were the nature and cause of the damage, whether the final design met the required professional standard, whether construction errors caused or contributed to the damage, and whether any design breach caused damage by December 2017.

1. Claim dismissed. The claimant failed to establish that the defendant’s final design was negligent or in breach of contract, and failed in any event to establish that any design breach caused the damage pleaded as existing by December 2017.
2. The applicable standard was reasonable skill and care, assessed by reference to the Bolam approach. In a defective-design claim, the court examines the final design rather than imposing liability merely because the design process involved mistakes. The observations in Adams v Rhymney Valley District Council [2001] PNLR 4 supported that approach.
3. A design must also be buildable by ordinary competent workmanship and supervision. The court referred to Hudson’s Building and Engineering Contracts and George Fischer Holding Limited (formerly George Fischer (Great Britain) Limited) v Multi Design Consultants Limited unrep. 10 February 1998. Nevertheless, the claimant had to prove that no reasonably competent body of engineers could have produced the defendant’s final design.
4. The court accepted that the final 32 mm dowel design was adequate to transfer loads. Earlier design errors, including the initial use of 25 mm dowels and changes concerning reinforcement, had been corrected before construction began and therefore could not have caused the pleaded damage. The evidence established construction defects: wrong-sized, shallow, bent and missing dowels, missing reinforcement and poor compaction. Those defects caused the damage by December 2017.
5. On causation, the claimant retained the burden of proving that the defendant’s breach caused or materially contributed to the relevant loss. The court preferred the defendant’s calculations and rejected the claimant’s finite-element analysis as unreliable. The causation principles discussed in Smith, Hogg and Co Ltd v Black Sea and Baltic General Insurance Co Ltd [1940] A.C. 997 and Heskell v Continental Express Ltd [1950] 1 All ER 1033 did not assist because breach by the defendant was not proved to have caused the damage.
6. The claimant’s case was confined by its pleadings. Following Azhar v All Money Matters [2023] EWCA Civ 1341 and Prudential Assurance Co Ltd v HMRC [2016] EWCA Civ 376, a party must have fair warning of the issues and arguments to be met. The unpleaded allegation that the claimant failed to supervise the construction was not considered.