Are your services the right fit?

The scope of services that a Consultant is to provide is a key part of the Consultant’s Appointment and should be given careful consideration.  It is important that the services are accurate and match the Employer’s requirements with regard to the project.  This is particularly demonstrated by a recent case Williams Tarr Construction Ltd v Anthony Roylance Ltd [2018] EWHC 2339, where an engineer was instructed to carry out some remedial works to a retaining wall.

The claimant (“William Tarr”) was a construction company engaged in preparatory works for a housing development.  The claimant instructed Construction Site Services UK Ltd (“CSS”) to construct a retaining wall at the development and the defendant “Roylance” provided design services to CSS.  Upon construction it was evident that the retaining wall was defective.  It was discovered that there was sand running behind the wall, which caused the water flow to be greater than expected.  This caused instability to the integrity of the retaining wall.

Once these problems were apparent William Tarr directly instructed Roylance to carry out some remedial design work.  The contract was formed over a series of emails and discussions.  As a result, Roylance designed a drain to address the problem with the water flow.

Unfortunately, although there was no design defect relating to the drain itself, it did not solve the retaining wall’s structural problems.  William Tarr later had to carry out further remedial works including extensive piling.  William Tarr then claimed that Roylance was negligent because he had failed to provide a design solution to ensure that the wall was fit for purpose.  In defence, Roylance claimed that he had only been instructed to design a drain, the drain was adequate and that his obligation was to conduct his services with reasonable skill and care.

After examining the contractual correspondence HH Judge Eyre QC decided that Roylance’s design was not negligent.  This was because Roylance had only been asked to address the problem of the water build up behind the retaining wall.  William Tarr had only expressly instructed Roylance to prepare the design and drawings for a new high level drain.  There was no requirement upon Roylance’s to redesign and strengthen the retaining wall or make sure it was fit for purpose.

This was obviously an expensive distinction for William Tarr, who found that the services that they had instructed fell short of what their overall intention had been.  There was also further confusion in the case over whether or not William Tarr had instructed Roylance via his company or in his personal capacity.  The judge had to carefully review emails and discussions to assess what formed the basis of the contract.

Most parties remember to get their contracts in order when initially carrying out works or services, but care should also be taken to ensure that the contract also covers any remediation work as well.  Whenever instructing a consultant to carry out design works, it is important to ensure that the scope of services is sufficiently accurate.  An unclear scope may have unintended and expensive consequences.