| Date | 6 August 1997 |
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| Judgment | Turner Page Music Ltd -v- Torres Design Associates Ltd ORB, 12th March 1997 CILL 1263 |
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| The Issue | Responsibility of consultant to its client for cost management, over-certification and defective design. |
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| Implication |
General Guidance on legal principles concerning consultant's negligent performance of duties. |
printAn unusually high number of recent construction law cases concern litigation between clients and their consultants. The case of Turner Page Music Ltd -v- Torres Design Associates Ltd provides one further example which illustrates many of the difficulties which can be faced in proving such a case. Turner Page engaged Torres to provide design and other professional services in connection with redevelopment of the Shepherd's Bush Empire Cinema. A contractor was engaged for building work at a contract price of approximately £450,000. Following completion, which was more or less on time, a final certificate was issued for the works in the sum of approximately £650,000. This substantial increase in cost was similarly reflected in the values of a separate contract which had been placed for M & E services. Rather unhappy with this outcome, Turner Page sued complaining of a number of breaches of duty on the part of their designers and contract administrators. Firstly the Court was asked to determine whether, on the basis of the evidence put before it, the consultant could be said to have given a warranty as to what the work would cost. The Court held that no such warranty had been given. Initial budgets which had been prepared were not in the manner of a contractual warranty that the specified work would be carried out for the figure stated. This being the case, the Courts were asked in the alternative to determine whether Turner Page were entitled to recover on the basis of an implied warranty that its consultant would use skill and care to ensure the works were accomplished for the budgeted sum. This was of course an attempted shortcut by the client. By showing how much more the final account was over the original budget they argued that one must automatically reach a conclusion that the consultant had failed in their duty. Not so, said the Court. For such a claim it cannot suffice simply to point to the eventual cost. Turner Page could not succeed without pleading and proving lack of due care and skill in specific respects where their consultant's failure to manage and control costs had led to overspend. Next, the Court was asked to determine what was the appropriate measure of damages where a consultant negligently certifies defective work. Here it was clear that Torres had duties of administration as architect and valuation as quantity surveyor as well as those of a certifying officer. Considering how such a claim should be addressed, Judge Hicks said that the first question in respect of each item must be whether the contractor was in breach of their contractual duties of good workmanship. If so, the next question was whether the consultant acting with due care and skill should have been aware of that breach. If so, its initial duty would normally be to require, at that time, that the work be redone properly. However, Turner Page had been desperate to get the theatre open on time and the last thing it wanted was to wait while the work was done again. The issue was therefore to be approached on the basis that the client had waived that breach, and since the defective work was to be accepted the consultant's duty was not to value or certify it at more than its proper worth. Accordingly the correct measure of damages must be the amount of over-certification. A similar view was taken by Judge Hicks when it came to a question dealing with additional preliminaries which had been certified by the defendant. Since there had been no application for loss and expense by the contractor it was his view that there could be no valid award and accordingly the consultant would be liable for over-certification of this sum. Lastly, and perhaps the most surprising element of the case, the Judge had to deal with consequences of alleged defective design. If the design fault resulted in the execution of work which should not have been done at all, then the damages would be the cost of the work, according to Judge Hicks. If, however, the complaint is that necessary work was not specified, then the only damage will be any increase in cost resulting from having the work done as an extra or under a separate contract rather than as part of the main contract works. Whilst most would agree with this analysis it is the increase in cost in the latter case which is generally thought to be difficult for a plaintiff to prove. Most standard forms provide for the execution of variation works to be valued using the rates and prices in the contract. Any "out of sequence" costs in relation to the additional work ought to be separately identified under the appropriate provisions of the contract. Judge Hicks was, however, willing to be much more robust than this. In very sweeping fashion he held that prices in such circumstances are without question higher than if they were procured as part of the original contract price. In his view, the likely increase in this case was one third, so that one quarter of the price actually paid represented the excess, this being an adequate measure of the client's recoverable loss.
CJ-9728
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