Cases - Pozzolanic Lytag Ltd v Bryan Hobson Associates
Record details
- Name
- Pozzolanic Lytag Ltd v Bryan Hobson Associates
- Date
- [1998]; [1998]
- Citation
- EWHC Technology 285; BLR 267
- Legislation
- Keywords
- Expert witness - potential liabilities of not setting up necessary collateral warranties - collateral warranties - no relevant insurance cover because no contractual relationship
- Summary
-
This case concerned professional negligence. It was alleged that a project manager had failed to check that contractors' insurance was in place.
The claimant in this case wished to have constructed a dome for the storage of pulverised ash. The defendant (Bryan Hobson Associates - BHA) agreed to carry out 'any necessary negotiations' with the proposed contractor, Horrall Harrington Ltd (HH), and to provide 'contract and project management' of the contract for the construction of the dome. HH designed and constructed the dome with the assistance of its sub-consultants, ASC. The contract required HH to carry professional indemnity (PI) cover in respect of the design obligations of HH in the contract. BHA obtained details of this cover from the contractor and passed them on to the client. The cover was, however, in the name of ASC and not HH. Subsequently, the dome collapsed and HH had no assets to meet any claim and no insurance cover. The only relevant insurance cover was that of ASC, against which the claimant could have no claim, because there was no contractual relationship between them.
The court held that BHA's duties as project manager required it to check and advise on the insurance provision, even though this was not stated in the appointment, and that it had failed properly to do so. The fact that, as BHA contended, it had no insurance expertise, made no difference. A similar approach would no doubt be taken by a court in relation to professional appointments and contracts prepared by a project manager.
The court criticised the extent of the expert evidence tendered, especially the length of the experts' reports. The judge hoped that the then-imminent implementation of the Woolf reforms in the CPR would focus attention on the cost of excessive use of experts.
'Of course I accept that expert witnesses fulfil a vital role in many cases. I strongly suspect, however, that in many cases insufficient thought is given by parties (and in particular their legal representatives) first to the question whether an expert is really necessary at all, and secondly to what issues the evidence of the expert should be directed.
... The Official Referee was persuaded to give leave for experts, but his order confined them to giving evidence about the common practice in the construction industry as to the role of consulting engineers, in particular in relation to the insurance of risks between employer and contractor. He also (and surprisingly) allowed the experts to deal with the question whether there had been contributory negligence by [the claimants]. It seems to me that the issue of contributory negligence by [the claimants] is one with which the engineer experts should plainly not have been concerned.
... the only issue to which expert evidence could properly have been directed was whether there is a common practice in the engineering profession as to what engineers, who are engaged as project managers, do in relation to the insurance obligations of contractors. That would have been a short point, which should have resulted in short reports. Instead of this, the experts prepared quite elaborate reports dealing with a number of other issues, which were inappropriate ... [The claimant's expert] reviewed some of the correspondence in the case. [The defendant's expert] produced a report which runs to 44 pages (excluding annexures), much of which is taken up with a recitation of the events and extracts from the correspondence.
The experts plainly went well beyond what the Official Referee had authorised... Prolix experts' reports directed to issues with which they should not be concerned merely add to the expense of litigation. Everything possible should be done to discourage this. In appropriate cases, this will include making special orders for costs.'