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Complex case uncovers the true value of nitty-gritty

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For those of you who prefer law to chat you can not do much better than the case of Jarvis v Castle Wharf Developments (2001) raising as it does issues of professional duty, negligence and causation, set against a background of a sizeable and 'sensitive' development in Nottingham and almost impenetrably complex facts.

The story went something like this: Castle Wharf was a company created with the single purpose of developing a site of the same name by the Beeston Canal in Nottingham. For various reasons the planners took a close interest in the development. They finally granted planning permission in 1996 but sought to achieve, and control, a high-quality design through unusually onerous conditions, including their approval of samples of external materials and large-scale drawings of external details. Castle Wharf engaged quantity surveyor Gleeds and architect Franklin Ellis, which then sought to reduce the cost of the proposed scheme by replacing structural glazing with cheaper curtain walling. Jarvis was invited to tender for the scheme on a design and build basis. The scheme put forward by Jarvis was materially different from that for which planning permission had been granted, but a price was agreed between Jarvis and Castle Wharf.

Franklin Ellis was then retained as architect by Jarvis and in 1996 Jarvis started work. In 1997 the planners took enforcement action.Planning permission had to be obtained for a revised scheme and Castle Wharf agreed revised payment terms with Jarvis. Upon completion of the development, Jarvis brought proceedings against Castle Wharf, Gleeds and Franklin Ellis, claiming that Jarvis did not know, until after work had started, that the scheme did not have planning permission. The firm claimed the losses it had suffered while the matter was resolved with the planners.

Shortly before his untimely death last summer, Technology and Construction Court judge His Honour Justice Cyril Newman found that each of the parties, Castle Wharf, Gleeds and Franklin Ellis were liable to Jarvis for various misrepresentations and breaches arising out of the project. All three appealed and in a detailed 40-page judgment, the Court of Appeal reversed the judge's findings and held that none of the three were liable to Jarvis.

Essentially, the court found that, irrespective of whether any duties alleged may have been owed or breached by the various parties, when the complex facts were unravelled they did not support any of Jarvis's allegations. For example, Jarvis alleged that Gleeds, the quantity surveyor, inaccurately misrepresented to Jarvis that the scheme complied with the planning consent.

The appellate court said that even if Jarvis relied upon what Gleeds told it when making its tender, Jarvis found out that the scheme was unacceptable to the planners before the company entered into the contract with Castle Wharf to build it. In fact, one of Jarvis' witnesses had agreed that Jarvis was carrying out the works without detailed approval and at its own risk.

Jarvis' counsel was unable to persuade the court to disregard this evidence on the basis that it was given 'at the end of a long, hot day'.

Jarvis also alleged that architect Franklin Ellis ought to have warned it of the absence of planning permission and it then added to the confusion by erroneously informing Jarvis that the planners had given their approval. Here the court found that the architects were not under a duty to warn Jarvis that they had been misinformed by the employer, Castle Wharf, or its agent, Gleeds: when dealing with experienced clients, such as a design-and-build contractor, there is only a duty to advise if advice is sought.

But even if they had been under such a duty, any warning they might have given would have been superfluous because when Jarvis started work it knew there was no agreement from the planners. So, Franklin Ellis could have owed all the duties Jarvis alleged and breached them all, the fact remained that Jarvis was the cause of its own losses.

This case demonstrates that to bring a successful claim you need not only the building blocks of 'duty', and a 'breach' that 'causes' the 'losses' claimed. They need to be held together with the nitty-gritty facts that actually support the allegations made.

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