HT-2022-000092 - [2024] EWHC 3184 (TCC)

Glanville’s obligations (Issues 1 and 2)

On 5 March 2014, Mr Matthew Jeal of Darcliffe first made contact with Mr Tim Foxall of Glanville in order to request a fee proposal. On 19 March 2014, Mr Jeal sent a further email to Mr Foxall which requested a further fee proposal. This email requested that Glanville carry out, inter alia, a “Phase 1 Geo-Environmental Survey”.

Mr Foxall duly provided a Fee Proposal on behalf of Glanville on 26 March 2014. Under the heading “Phase 1 Geo-Environmental Assessment”, Mr Foxall stated:

“As you are doubtless aware, there are four main steps to contamination assessment; these being: i) A ‘desk study’ type report including a conceptual model (Phase 1 Geo-Environmental Assessment). ii) An intrusive site investigation. iii) Developed and implementation of a remediation strategy. iv) Each stage is dependent upon the findings of the preceding stage, but the first stage is essentially a desk based exercise and, given the preliminary nature of this particular project, is what I recommend is undertaken in the first instance as the findings will help demonstrate the deliverability of the sites. The assessment will identify any potential sources of contamination and, as and when a planning application is submitted, will ultimately be used to inform the view taken by the local planning authority in terms of their requirement for intrusive investigation. Obviously we will prepare our report as sympathetically as possible, but in our experience even if this study is able to suggest that there is very little or no risk on site, some local authorities can insist on a level of chemical testing at application stage on the basis that some contaminants (such as arsenic) are naturally occurring and would not be associated with an historic land use. Our report will therefore aim to demonstrate that there are no particular issues that would prevent responsible development of the site.”

Following negotiations over the level of fees, on 2 May 2014, Mr Jeal confirmed Glanville’s appointment pursuant to the revised fee estimate which had been provided.

In February 2016, Darcliffe asked Glanville to produce an updated report. On 23 February 2016, Glanville provided Darcliffe with a quotation for this work, which Darcliffe accepted on 25 February 2016.

Absent any authority to the contrary, it seems to me that the court’s task in relation to a commercial contract such as this is to determine the (relevant) scope of each party’s obligations. That determination is to be derived by ascertaining the objective intentions of the parties, set in their admissible context.

So far as relevant, it seems to me that Glanville’s core obligation was to carry out a ‘desk study’ type report including a conceptual model (i.e. a Phase 1 Geo-Environmental Assessment). I understood from the factual and expert evidence (discussed further below) that a Phase 1 Geo-Environmental Assessment, although a concept of American origin, is now reasonably well understood in the UK. Such an assessment requires an analysis of the ground conditions, albeit on a preliminary, desktop basis. It includes, but is not limited to, a desktop geotechnical assessment.

Glanville submit that I should approach the question of scope of duty guided by the recent decision of the Supreme Court in Manchester Building Society v Grant Thornton UK LLP [2022] AC 783 (“MBS”). The majority summarised their view at [4] as follows:

At [6], the majority identified that, when a claimant seeks damages from a defendant in the tort of negligence, the following six questions arise:

“(1)

Is the harm (loss, injury and damage) which is the subject matter of the claim actionable in negligence? (the actionability question)

(2)

What are the risks of harm to the claimant against which the law imposes on the defendant a duty to take care? (the scope of duty question)

(3)

Did the defendant breach his or her duty by his or her act or omission? (the breach question)

(4)

Is the loss for which the claimant seeks damages the consequence of the defendant’s act or omission? (the factual causation question)

(5)

Is there a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of the defendant’s duty of care as analysed at stage 2 above? (the duty nexus question)

(6)

Is a particular element of the harm for which the claimant seeks damages irrecoverable because it is too remote, or because there is a different effective cause (including novus actus interveniens) in relation to it or because the claimant has mitigated his or her loss or has failed to avoid loss which he or she could reasonably have been expected to avoid (the legal responsibility question).”

Glanville draw my attention to questions (2) and (5) in particular. Essentially, they submit that the purpose here of Glanville’s engagement was to facilitate the promotion of the Site in the local plan for the West Berkshire site allocation. Thus, they submit, the risks of harm to the Claimant against which the law imposed on them a duty to take care were limited to risks associated with such promotion. It follows, they say, that there is not sufficient nexus between the harm for which the Claimant seeks damages (the extensive remediation costs incurred) and the subject matter of the defendant’s duty of care as properly analysed.

For my part, it seems to me that this analysis is over complex for a case like the present. I note that the Court of Appeal has observed in Rushbond Plc v JS Design Partnership LLP [2021] EWCA Civ 1889; [2022] PNLR 9 and URS Corp Ltd v BDW Trading Ltd [2023] EWCA Civ 772; [2024] KB 827 that the six-stage checklist set out by the majority in MBS was primarily designed to analyse duties of care alleged to arise in novel situations which had not previously been considered by the courts, or where the type of loss claimed was unusual or stretched the usual boundaries imposed by law. It was not primarily intended to be applied by rote to well-known and much-reported standard duties of care.

In the present case I have concluded that the scope of Glanville’s duty, so far as relevant, was to carry out a Phase 1 Geo-Environmental Assessment, as this term is understood in the construction industry. Of course, Glanville had numerous other duties, but these are not germane to the claim made. Obviously, they were obliged to exercise reasonable care and skill in carrying out the assessment.

It is true that a primary purpose of the engagement of Glanville was to advance Darcliffe’s position in planning terms. That is why they were aiming “to demonstrate that there are no particular issues that would prevent responsible development of the site”. However, it is a non sequitur to say that because this was a primary purpose, Glanville were not obliged to exercise reasonable care and skill in carrying out the Phase 1 Geo-Environmental Assessment as a whole. Furthermore, Glanville were, in my view, obliged to perform all the obligations of a Phase 1 Geo-Environmental Assessment as commonly understood, and Darcliffe were entitled to the benefit of such performance for whatever purpose they chose.

The scope of the duty, therefore, and the risks of harm to the claimant against which the law imposed on the defendant a duty to take care, was to carry out a reasonably competent Phase 1 Geo-Environmental Assessment. This case is not on all fours with the famous “mountaineer” example given by Lord Hoffmann in South Australia Asset Management Corporation Respondents v York Montague Ltd [1997] A.C. 191, 213 where the negligent doctor is not liable because “the injury has not been caused by the doctor's bad advice because it would have occurred even if the advice had been correct”. In the present case, if Darcliffe are right on their allegations of breach and causation, the “injury” would not have occurred if the Phase 1 Geo-Environmental Assessment had been carried out with reasonable skill and care.