No.8 - Cooperative Group Ltd v John Allen Associates Ltd

Ten cases every consulting engineer should know

Cooperative Group Ltd v John Allen Associates Ltd [2010] EWHC 2300 (TCC)

In summary

This case highlights the issues to be considered in determining whether construction professionals have acted reasonably in seeking the assistance of specialists to discharge their duty to a client.  Note that this is not to be confused with circumstances where the specialist is a sub-consultant to the professional.  Engineers are entitled to rely on advice from sub-consultants and to recover from them in the event of that advice being wrong, but different considerations apply in cases where the engineer and the specialist have no contractual relationship, as was the case here.

Facts:

A supermarket site was developed for the CoOp Group by an independent developer. In view of the prevailing ground conditions the main contract provided for vibro-compacting ground improvement and a performance specification for soil stabilisation by vibro-replacement techniques.  

That specification had been prepared for CoOp by the engineers, JAA. In the course of preparing their specification they had relied on specialist advice from a contractor who had expertise in vibro-replacement techniques and who had advised on the suitability of those techniques for this development.  Responsibility for the design of the ground improvement scheme in accordance with this performance specification rested with the specialist subcontractors who had been engaged by the main contractor for that purpose.   Both the main contractor and JAA provided direct warranties to Coop. 

Following completion the site was affected by differential settlement which caused sloping to the floors.   CoOp claimed damages for breach of warranty from JAA. 

JAA contended that vibro replacement had been a reasonable proposition and that even if it wasn’t it had not breached its duty to the CoOp as it had relied on specialist advice. 

The court held that: 

Professionals do not, by the mere act of obtaining advice or a design from another party, divest themselves of their duties in respect of that advice.

A professional can only discharge his duty to exercise reasonable skill and care by relying on the advice of a specialist where the professional is considered by the court to have acted reasonably in doing so. In determining that issue, the court will consider all of the circumstances, including whether:

• the advice had been taken from an appropriate specialist;
• it had been reasonable to seek assistance from another party; 
• issues had emerged which should have led the professional to provide a warning to his client;
• the client has a remedy elsewhere in respect of the specialist advice;
• the professional should have advised the client to seek advice elsewhere or should himself have taken professional advice under a separate retainer.

In this particular case, the court found that JAA had not failed to exercise reasonable care and skill because having regard to the expert evidence before the court it could not be said that vibro replacement would never have worked on site. 

Whether or not a professional has discharged his duty to exercise reasonable skill and care by relying on the advice of a specialist depends in all the circumstances on whether it is reasonable to do so.