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

Reliance/causation (Issues 3 and 5)

These are essentially questions of fact.

I suggested to Counsel, for consideration as part of their closing submissions, that for this section of the case, the following questions arose, and I did not understand them to demur:

As regards the first question, it is apparent from Mr Raison’s careful evidence that Glanville did not need to do much more than they in fact did in order to avoid a conclusion that they had failed to act with reasonable care and skill. For example, he said in his report at paragraph 14.7(g) that:

“All GCL had to do in their report was to provide a single simple warning about the potential for deep weathering and Chalk dissolution features in general terms.”

When cross examined on this point his evidence was as follows:

“MS MIRCHANDANI: Now, going back to your reference to there being a need for a single line warning …

MS MIRCHANDANI: So, in your view, all Glanville had to do was provide a simple generic warning, yes?

A Yes.

Q And had they done that there would be no negligence?

A That's right.”

It should also be noted at this juncture that Glanville’s (somewhat incoherent) statement at paragraph 4.11 of their report that “the sites geology is at a low from ground dissolution” was not necessarily wholly incorrect so far as the assessment of risk or hazard from the ground was concerned. This is for two reasons:

As to question (b), I need to be satisfied, on the balance of probabilities, that Darcliffe’s corporate mind would have been affected if Glanville had given non-negligent advice. In reality, the mind in question would have been that of Messrs Denton and Smith, the principals of the company. As noted above, they gave evidence before me and I have no difficulty in accepting them as honest and careful witnesses.

In answering this question in their closing submissions, Darcliffe argued as follows:

“50.

If Darcliffe had known that dissolution feature should be assumed unless proved otherwise, or if Glanville had warned of the matters summarised in paragraph 49 above, Darcliffe would have investigated the potential cost implications, to pass them onto the vendor of the Land. Darcliffe would have discovered that it was not possible to determine whether dissolution features were present without carrying out very extensive intrusive ground investigation surveys, and the costs could not be predicted. It would not have gone ahead with the purchase. See: Denton W/S paragraph 13.”

I do not find it easy to accept that Darcliffe would have taken the drastic step of withdrawing from the transaction. Indeed, Mr Denton’s written evidence on the point is more measured, namely that Darcliffe would have taken further advice to understand the potential costs implications: see his witness statement at paragraph 13.

Moreover, this issue overlaps with the question of “low risk”. Mr Denton clearly attached some weight to Glanville’s apparent assessment that the Site was at “low risk”, a conclusion which was potentially within the realms of non-negligent advice. For example, he stated in cross- examination that:

“Q So, just so I'm clear, you at the time read the conclusion?

A I read the conclusion that said “low risk,” yes.

Q You didn't read the rest of the report?

A I'm not going to claim that I read the rest of the report. I may have skim read it, I'm not going to claim to have read it all, no, any more than I’d - - I’d read all of the other six that we received.”

I think, therefore, that Darcliffe would not have withdrawn upon receipt of a (hypothetical) non-negligent report from Glanville. Realistically, I think that they would either not have noticed the additional sentence on a “skim read” or, at most, would have drawn it to the attention of GWL when engaging them for the Phase 2 investigation.

In this connection, it is of note that no one at Darcliffe queried the confusing, but now said to be critical, observation by Glanville that “it is indicated that the sites geology is at a low from ground dissolution”. This invited questions, such as “indicated by whom” and “a low what”, but Darcliffe did not seek clarification on these matters.

In summary, therefore, the effect of the Glanville Reports upon Darcliffe’s corporate mind was minimal. Darcliffe’s corporate mind would not have been much affected, if at all, if Glanville had given non-negligent advice as defined above.

As to question (c), I need to be satisfied, on the balance of probabilities, that Darcliffe would have done something different than they in fact did, the corporate mind having been affected to the very limited extent mentioned above.

As regards this issue, the highest the evidence can be put was expressed as follows by Mr Smith in cross-examination:

“Q So, in 2017, after both Glanville reports, you commissioned GWL to carry out intrusive site investigations to investigate the ground conditions and prepare a Phase 2 report.

A Yes, but had we had the information that there were dissolution features just 80 yards down the road, we would have made sure that GWL would have been alerted too, and we would have carried out not maybe just two excavations but maybe four, five, whatever. The point was we've never had the opportunity to do what we would have liked to have done had we been correctly briefed…

Q So, if I could take you back then to paragraph 9.2 of your statement, what you were saying here is that if Glanville had different advice back in 2014 or 2016, you would have carried out intrusive site investigations to investigate further.

A We would have carried out a further investigation, yes.

Q Yes, and you in fact did carry out further investigations in 2017.

A I suspect, if we'd have had indications of ground dissolution features in the Glanville report, we would've perhaps re-briefed Ground and Water in a different way.”

On analysis, this really seems to be saying (putting it in more legalistic terms) that Darcliffe lost the chance to give better and more focussed instructions to GWL, which would, in turn, have prompted GWL to look more carefully for signs of ground dissolution features.

This is a somewhat convoluted case, and some way apart from the way in which the case has been pleaded and pursued by Darcliffe. However, leaving that aside, I do not consider that this case is made out on the evidence.

On the contrary, it seems to me that GWL were or, at least, should have been aware of all the relevant implications of building on the Site, without the need to be “re-briefed”.

In particular, when Darcliffe sought from GWL “a full Phase 2 intrusive site investigation to inform the detailed design” in September 2017, they:

The link to Glanville’s Phase 1 Geo-Environmental Assessment was important, because this allowed GWL access not only to Glanville’s assessment, such as it was, but also to the Envirocheck report, which set out the desktop state of knowledge of the ground conditions. Indeed, in GWL’s report they stated at paragraph 1.3 that:

“This report relies upon the Glanville Phase I Geo-Environmental Assessment Report, Issue 3, dated 29^th April 2016. Total reliance has been placed on this report and no liability can be taken for their short comings.”

Whether GWL were entitled to so rely as a matter of law is the subject of issue 18. But as a matter of fact, GWL had access to, and relied upon, the underlying information which Glanville had obtained.

Furthermore, GWL were in fact aware of the fact that the Site was “underlain by the Seaford Chalk Formation” (January 2018 Report para 2.4, and see also para 4.1). It follows that GWL, and Darcliffe, were in no different a position in 2017/2018 than they would have been if Glanville had provided the limited further assessment which Mr Raison contends, and I accept, should have been provided.

It follows that Darcliffe have, on the facts, failed to establish a sufficient nexus between a particular element of the harm for which the claimant seeks damages and the subject matter of Glanville’s duty of care. That is because, in summary: