Clarity before construction: the cost of an unclear scope of work

A little-reported case in the Technology and Construction Court recently has highlighted the importance of ensuring a scope of work is clear, agreed and in place before any building work commences.

Background
Martell v Roszkowski and others [2024] was a case concerning a dispute about building works to Miss Martell’s West London property. GS Building Services (“GSB”) was employed as the builder for the project, under a written contract prepared by GSB. The works included refurbishing and extending the ground floor and extending the basement to form a habitable space. The works involved excavation and underpinning.

Miss Martell employed Martin Gustyn & Associates Ltd (“MGA”) as structural engineers, however, there was no engagement letter setting out the scope of services to be provided by MGA.

Throughout the project, Miss Martell was rarely at the property and MGA would therefore visit the property and keep Miss Martell updated on the progress of the works.

During the works, Miss Martell became aware of water ingress to the basement.

The claim against GSB
Miss Martell claimed that GSB was in breach of contract for failing to use concrete of the agreed specification and for failing to design and construct a suitable waterproofing system. After samples of the concrete were tested, and after hearing evidence from expert witnesses the court found that the concrete did not meet the required specification as set out in the building contract.

The fact that a written building contract was in place between Miss Martell and GSB proved extremely beneficial to Miss Martell in the claim against GSB. The building contract set out what was the required concrete specification. After testing, it was clear this had not been met. GSB was found to be in breach of contract.

The claim against MGA
A potentially more interesting point was the claim against MGA that it was in breach of its contractual duty by failing to monitor the works and ensure that it was built to the contractual specification. In particular, Miss Martell claimed that MGA should have notified her that the concrete was not the correct specification, and had they done so, her loss could have been mitigated. Miss Martell claimed nearly £400,000 worth of losses.

Miss Martell claimed that MGA’s role on the renovation works was comparable to that of a project manager. However, MGA denied this and stated that it was only obliged to address specific queries as requested.

In its judgment, the court noted that it was ‘rather unusual’ that an engagement letter was not agreed between the parties setting out the scope of works. The evidence from the correspondence between Miss Martell and MGA showed that Miss Martell was relying on MGA to inspect the site and keep her informed of the progress. The judge found that in the absence of any engagement letter which set out the scope of works, and in light of the conduct between the parties, Miss Martell was entitled to rely on MGA monitoring the work. MGA therefore breached its duty to Miss Martell by failing to monitor the quality of the concrete and that breach caused Miss Martell to suffer loss as a result of having to undertake substantial remedial works.

This case is a salutary reminder of the importance of setting out a clear scope of work and the parties’ responsibilities in a written contract that is agreed between the parties before building works begin. The absence of this was MGA’s undoing.

If you would like further information or advice on a legal matter relating to the construction industry, please contact B P Collins’ construction team on 01753 889995 or email enquiries@bpcollins.co.uk.