Special relationships, home-made wine, consenting adults and gap filling

Matthew Molloy

November 2005

A paper based on the commended entry in the Hudson Prize Competition

The paper considers the tortious liability of professionals concerned in novated design and build arrangements in respect of pre-novation design functions, particularly in the light of Blyth & Blyth v Carillion Construction. The author considers the facts of that case, the decision and reaction to it. He goes on to suggest that Hedley Byrne and subsequent decisions form a basis for a tortious action. He looks at Hedley Byrne in some detail, the nature of the special relationship required and the way that the principle in that case has been developed since 1964 in such cases as Caparo v Dickman, Henderson v Merrett Syndicates and Williams v Natural Life Health Foods, in particular quoting Lord Steyn in the latter case. He then looks at the case law in relation to actions by contractors in tort against professionals for negligence, in particular Pacific Associates v Baxter, then moving on to professional's liability to a design and build contractor for negligent misstatement at tender stage. The author then returns to the facts in Blyth & Blyth, testing his hypothesis. He concludes that in his submission, the authorities support the proposition that a professional can be held liable in tort to a tendering contractor for negligent misstatements or representations made during a pre-novation period.

The author: Matthew Molloy MSc, FICS, FCIArb, FCIOB, barrister is director of MCMS Ltd a dispute resolution practice based on London, Birmingham and Leeds.

Text: 12 pages

PDF file size: 75k