Building Law Monthly

The Supreme Court in Jones v Kaney [2011] UKSC 13, [2011] BLR 283 held that expert witnesses no longer enjoy an immunity from suit in the tort of negligence in relation to their participation in legal proceedings. While they will continue to retain their absolute privilege in respect of claims in defamation, they may now be liable in negligence.

In National Rail Infrastructure Ltd v Conarken Group Ltd [2011] EWCA Civ 644, [2011] All ER (D) 288 (May) the Court of Appeal dismissed an appeal from the decision of Mr Justice Akenhead (on which see our August/September 2010 issue, pp9-12). The economic loss in respect of which damages were claimed flowed directly and foreseeably from physical damage to the property of the claimant and in principle loss of this nature is recoverable in tort. The court experienced greater difficulty in explaining the extent of a defendant’s liability for a loss of this nature. Much will depend upon the facts and circumstances of the individual case. Factors which the courts will take into account when deciding whether the claimant can recover the sum claimed include the foreseeability of the loss, the scope of the duty of care assumed by the defendant, whether the sum claimed is fair and reasonable and the nature of the relationship between the parties.

In CRJ Services Ltd v Lanstar Ltd (t/a CSG Lanstar) [2011] EWHC 972 TCC, [2011] All ER (D) 122 (May) Mr Justice Akenhead held that the claimant was entitled to summary judgment in order to enforce the decision of an adjudicator. The defendant had resisted enforcement on two grounds. The first was that there had been a breach of natural justice but it was held that the defendant had failed to establish on the evidence a material breach of the rules of natural justice. The second was that the adjudicator lacked jurisdiction because there was no contract between the parties on the ground that the person who had purported to act for the defendant had no authority, actual, implied or ostensible to do so. This defence was also rejected on the ground that the person concerned had apparent or ostensible authority to enter into the contract in question.

In SGL Carbon Fibres Ltd v RBG Ltd [2011] CSOH 62, 2011 Scot (D) 16/4 Lord Glennie held that an adjudicator who intends to proceed on the basis of his own knowledge and experience, in circumstances where he is required to give the parties a reasonable opportunity of commenting upon what he proposes to do, should raise the issue with the parties as soon as he is aware of it and must do so in time to allow adequate opportunity for comment. The adjudicator in the present case failed to do this with the consequence that his decision was held not to be enforceable. It was also held that the adjudicator had failed to exhaust his jurisdiction so that the decision was unenforceable on that ground too. Finally, Lord Glennie questioned the assumption of the parties that it is necessary in Scotland to reduce or set aside the decision of an adjudicator in order to entitle the parties to refer the dispute again to adjudication. In his opinion it should suffice that the decision in the first adjudication has been held not to be binding on the parties. Once a court has concluded that the decision is not enforceable and so not binding upon the parties, they should be free to refer the dispute again to adjudication without the need formally to reduce or set aside the decision in the first adjudication. However, he expressly refrained from deciding the case on this ground and so the issue may be regarded as an open one in Scots law.

In Scullion v Bank of Scotland (t/a Colleys) [2011] EWCA 693, [2011] All ER (D) 126 (Jun) the Court of Appeal held, allowing an appeal from the decision of Richard Snowden QC, that the defendant surveyors did not owe a duty of care to the claimant who had purchased a property on a buy to let basis in reliance upon the survey prepared for the mortgagee by the defendant. In this respect there is an important difference between a purchaser who buys a relatively modest house as a dwelling (to whom a duty of care is likely to be owed by a valuer) and a buy-to-let purchaser (who is now unlikely to be owed such a duty of care). It is therefore important that buy-to-let purchasers obtain their own valuations before purchasing the property in question and that they should not rely on a valuation which has been obtained for the mortgagee.