Civil Engineering Reference
In-Depth Information
named in the appointment instead of the employer. There was a further provision by which
the engineers agreed that their services would all be treated as having been performed for
the contractor and to be liable to the contractor for any breach of the appointment which
occurred before the date of the novation.
Thecourthadtodecidewhetherthecontractorcouldclaimagainsttheengineersforloss
due to the engineers' alleged breach of their obligation to the employer to provide accur-
ate information for the Employer's Requirements. The court decided that the contractor
was not entitled to make such a claim. The court reasoned that the contractor could not
claim against the engineers for a breach of duty which occurred before the novation agree-
ment and was concerning a duty owed to the employer unless the employer had suffered
the losses. In the
Blyth
case, an attempt was made by the contractor to give effect to the
novation agreement by substituting the word 'contractor' for 'employer' in the appoint-
ment whenever it occurred. This produced results which the court described as 'nonsensic-
al'. The reason why the contractor was unsuccessful was mainly because the employer, in
whose shoes the contractor attempted to stand, did not suffer any loss. The
Blyth & Blyth
clause, already mentioned, attempts to forestall that defence by requiring that the consult-
ant will not argue in any legal proceedings that a contractor's claim fails simply because
the employer did not, in fact, suffer a loss. Some clauses go further and attempt to link dir-
ectly to losses suffered by the contractor. However, where a normal novation agreement is
employed, the failure to include additional clauses on the
Blyth & Blyth
model may result
in the contractor being unable to claim against the consultant for pre-novation negligence.
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[2003] EWHC Civ 1035 CA.
S. 4 Statute of Frauds 1677.
Balfour Beatty Civil Engineering v Technical and General Guarantee Co Ltd
[2000] CLC 252.
Chartbrook Ltd v Persimmon Homes Ltd & Another
(2009) 125 Con LR 1.
Holme v Brunskill
(1878) 3 QBD 495.
[2012] EW Misc 3 (CC).
(2001) 79 Con LR 142.
