CONCURRENT LIABILITY, COLLATERAL WARRANTIES AND THE NATURE OF THE LOSS SUFFERED

The decision of Mr Justice Akenhead in How Engineering Services Ltd v Southern Insulation (Medway) Ltd [2010] EWHC 1878 (TCC), [2010] All ER (D) 256 (Jul) is a further instalment in the litigation which we noted in our July 2010 issue at pp.4-8 (see the discussion of Linklaters Business Services v Sir Robert McAlpine [2010] EWHC 1145 (TCC), [2010] All ER (D) 162 (Jun)). It was held that the defendant owed to the claimant a concurrent duty of care to exercise reasonable care and skill in carrying out the insulation works which it had been contractually engaged to do. The fact that the loss sought to be recovered came down through a chain which included collateral warranties (rather than the normal chain of main contract, sub-contract and sub-sub-contract) was held not to alter in any material way the nature of the loss which it was sought to recover. The basic loss remained the same, namely the cost of remedial work for what was alleged to be carelessly executed work.