[2025] EWHC 1010 (TCC)
The dispute in this case related to a house extension and refurbishment. HHJ Davies had to consider whether Carrington had properly particularised her claims and whether they had a real prospect of success on the case pleaded. One of the issues that arose was whether or not there was a duty to review the construction information during the build. Was that information sufficient for construction or were further detailed drawings required?
The designer's insurers said that the duty to review arose in circumstances where the architect had previously provided a design, and then had cause to review the design they provided. Here, Carrington's primary case was that the architect had failed to provide that design. Accordingly, there was no design, as such, to "review".
Having considered the authorities, HHJ Davies noted that a designer who also supervises or inspects work is under an obligation to review the design until it has been constructed and, after that, if something occurs to make it necessary or at least prudent for the designer to do so. Further, a cause of action for a failure properly to review the design is a different cause of action from a failure to provide a proper design in the first place.
There was nothing in any of these authorities to suggest that the duty to review can only arise where a design has already been provided. The judge gave an example of a structural engineer who was contracted to provide a general structural design, but failed to design one particular element of that design, and this was not picked up at that design stage. However, the structural engineer was also contracted to supervise or inspect the works and failed to appreciate the absence of or to provide the missing design at construction stage. It seemed to the judge to be reasonably arguable that the structural engineer could be held liable for breach of a duty to review at that stage.
There was no obvious distinction in principle between someone who was contracted to design but does not in fact do so, and someone who is contracted to design and does so, whether competently or negligently. In every case where such person is also under a duty to supervise or to inspect, then it is – subject always to the express terms of the contract – at least reasonably arguable that, if something occurred to make it necessary or at least prudent for them to consider whether a sufficient design has been provided to enable the structure to be properly built, they must consider that question even if they have provided no design at all, just as much as if they had provided some design.
Here, the allegation pleaded was the failure to provide the necessary details to facilitate adequate construction. The architect proceeded on the basis that the design drawings and specification already produced, and the structural engineer's details also provided, were sufficient for construction, so that nothing further needed to be issued. Carrington alleged that what had already been provided did not provide sufficient information for the construction phase, and the architect when circumstances arose ought to have appreciated the need to review this decision to proceed on the basis of the available information, either failing to review whether or not the design already issued was sufficient or deciding, wrongly, that there was no need to review the design. This was sufficient for this part of the case to proceed.
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