Dhamija & Anr v Sunningdale Joineries Ltd & Others [2010] EWHC 2396 (TCC)

During 2003, the Dhamijas engaged a contractor and architect for the design and construction of their new home. The architect recommended that a quantity surveyor be appointed “to ensure some safeguard in the administration of the Contract”. The Dhamijas agreed and the architect made contact with McBains Cooper Consulting Ltd. There was, however, no record of any substantive terms being agreed either in writing or verbally between McBains and the Dhamijas.

Following completion of the building works, the Dhamijas alleged a number of defects in the design and construction of their home, and in 2009 they issued proceedings against the contractor, architect and McBains. As against McBains, the Dhamijas alleged that the works had been over valued and that McBains had acted in breach of its duty to only value work that had been properly executed by the contractor and was not obviously defective. McBains issued an application to strike out the second part of the Dhamijas claim saying that they did not as a matter of law owe the duty alleged. The QS’s duty was to include in the interim certifi cates an amount based on the works properly executed, as advised by the architect.

The case came before Mr Justice Coulson. He agreed that there was an implied term that the quantity surveyor would act with reasonable skill and care when valuing the works properly executed by the contractor for the purposes of issuing interim certifi cates. This term would ordinarily (and unsurprisingly) be required in order to give it business effi cacy to the agreement made between the Dhamijas and McBains.

However, he disagreed that there was an implied term that the quantity surveyor was under a duty to only value work that had been properly executed by the contractor and was not obviously defective. He held that there was no basis in fact or in law to justify this positive duty. It was the architect who had responsibility for the quality of the works and it was the architect who should have notifi ed the quantity surveyor of any defects that may have aff ected the valuation of an interim certifi cate.

As a consequence of this, the Judge also disagreed with the suggestion that if the quantity surveyor noticed defective work when visiting site, then he was under a duty to inform the architect of this in case the architect had missed it. There was no express agreement. Indeed the Judge felt that the Dhamijas were seeking to turn the usual position on its head, to require the quantity surveyors to tell the architects about defective works (rather than the other way round), and to make the quantity surveyors liable for quality (at least to the extent that the defects were ‘obviously defective’) as well as quantities.

Yet despite this, on balance, the Judge felt that the claim should not be struck out. Disclosure had not yet taken place and detailed evidence had not been exchanged. Therefore it was just possible - and the Judge did note that the Dhamijas ran the risk of an indemnity costs order against them if they lost - that the Dhamijas might be able to demonstrate that McBains had fallen below the standard to be expected of an ordinarily competent quantity surveyor. That question in itself could be determined as a preliminary issue, following limited disclosure and the exchange of short statement and reports. But it was too early to consider the question at the present stage of the litigation.