England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION TECHNOLOGY AND
CONSTRUCTION COURT (Mr Justice Thayne Forbes)

		Royal Courts of Justice Strand, London, WC2A 2LL
		18 December 2002

Lord Justice Potter:

INTRODUCTION

1. This is an appeal from the judgment of Thayne Forbes J in Part 20 proceedings between E Turner and Sons Limited ("Turner"), a construction company and Horace D Watkins and Alan J Best, partners in HD Watkins and Associates, Architects ("Watkins") arising out of certain design works carried out by Watkins in connection with the construction by Turner for the Unigate Group of companies of a new dairy extension to premises at Marshfield. Those works were completed as long ago as December 1982. At the time the dairy was designed, built and first occupied it was owned by Unigate Western Limited. However Unigate (UK) Limited subsequently became owners and occupiers. Unigate (UK), with other Unigate companies, brought proceedings for damages against Turner in respect of losses sustained by them in a fire which broke out in the storage area of the dairy on the morning of 7 March 1995, spread rapidly and caused extensive damage to buildings and equipment before it was brought under control.
2. The main proceedings by Unigate against Turner alleged faulty construction rather than design. The essential allegation as to the cause of the fire was that the fire compartment wall from ground floor to roof level, which separated the storage area along gridline 2 of Watkins' design drawings from the offices at first floor level on the other side, had not been properly constructed so as to contain the fire and had allowed the passage of fire and smoke across the top of the fire compartment wall, so causing damage to the office and laboratory areas, before spreading across the second compartment wall along gridline 3 into the production area where further widespread smoke and other damage was caused. Deficiencies in construction of the junction of the compartment wall with the roof gave rise to a failure to provide the 2-hour fire resistance specified in Watkins design drawings. Had the gridline 2 compartment wall been built and finished as a 2-hour fire resistant wall, virtually no heat or smoke damage would have occurred on the first floor, the ceilings and claddings of which would have remained intact. The proceedings were defended by Turner, on the basis that Watkins had supplied a design for the relevant detail, contained in a Drawing No. 853/93. This was said to be defective in that it did not require the wall to be built right up to the roof sheets or show upstands to the fire linings on either side to achieve a similar effect. Turner contended that they were not liable for such design defects because, although they had a contractual responsibility, the claim of Unigate was in tort and Turner were not liable for the acts of Watkins as their independent contractor.
3. In the Part 20 proceedings, it was in turn alleged by Turner against Watkins that the design of the compartment wall along gridline 2 for which they had been responsible was negligent. The Part 20 claim was for damages and a contribution. However, it was early accepted that the claim for damages was statute-barred by the longstop period of fifteen years provided by s.14A of the Limitation Act 1980 and the claim was therefore simply one for contribution under the Civil Liability (Contribution) Act 1978 on the grounds of Watkins' negligence vis-à-vis future building owners in respect of their original design failures. Watkins denied liability on the basis that their engagement was for partial services only, in respect of which they had properly carried out those services which Turner had requested, and that the damage occurred as a result of errors in construction by Turner and/or their sub-contractors for which Watkins were not responsible. They denied negligence or, if they had been negligent, that such negligence was causative of the damage suffered by Unigate. The nature of their defence arose out of the following circumstances.

THE FACTUAL BACKGROUND

4. The Unigate Group had an 'in house' team with considerable experience of building and extending dairies for various companies in the group. The team included Mr Lucas, who, although not a qualified architect, often undertook an equivalent role under the description "architectural co-ordinator". Under his supervision, a design sufficient to obtain outline planning permission for the dairy was prepared. He submitted an application for outline consent to the Newport Borough Council which granted outline planning permission on 21 July 1981.
5. Turner had carried out construction works, building dairies for Unigate on a 'design and build' basis on a number of previous occasions, thereby, as found by the judge, producing a degree of familiarity and informality in the business relationship between them.
6. The relevant building contract was made between Turner and Unigate Dairies (Western) Limited. Although a design and build contract, it incorporated the JCT standard form of building contract for use with approximate quantities private edition 1975 revision ("the building contract") which was ill-suited to reflect the nature of the arrangement. That contract was agreed by 27 October 1981. Turner agreed to construct a new processing depot and associated work (i.e. the dairy in question). Recitals recorded that drawings and bills of approximate quantities describing the work to be done had been prepared by or under the direction of Mr Lucas who was described as "the Supervising Officer" under the building contract. The Contract Drawings were listed in recitals to the Article of Agreement as "Drawings numbered 853/1,3,10,11,12 and 13 inclusive".
7. It was common ground that, as part of their overall contractual obligations to Unigate Western, Turner undertook responsibility for such work of design as was required for the construction of the dairy. In that connection, they engaged the services of Watkins as sub-contractors to themselves as main contractors in respect of the provision of architectural/design services for Unigate Western. Watkins were not engaged, nor did they assume the role, as architects employed by the developer or building owner in respect of the overall design and supervision of the project. It was the function of Mr Lucas as Supervisory Officer to inspect Turner's works as they progressed and, following completion and the expiry of the defects liability period, to certify the completion of the works in accordance with the Contract Drawings.
8. In this somewhat unusual scheme the judge described, and made findings as to Watkins' role as follows:

"8. HDW's [Watkins'] engagement by Turner was not in writing and was somewhat informal in nature. As a result, there is an issue as to the extent of HDW's duties. However, it is common ground that HDW were not required to and did not perform any supervisory or inspection role with regard to the actual building works. It s clear that these important functions fell to be carried out by Mr Lucas as "the Supervising Officer", assisted by Unigate Western's Clerk of Works, Mr Gregory.

9. As I have already indicated, HDW were not engaged as architects for the project in the usual way. In my view, it is clear that their engagement was for the provision of "partial architectural services" and that their role was, to a significant extent, responsive in nature. HDW produced the basic drawings required for the construction of the dairy and such other relevant detailed information as Turner required, when and to the extent that they were required to do so by Turner. Thus, if Turner did require more detail of or information about any particular aspect of the general design, they would submit an appropriate query (usually in writing) to HDW who would then supply the necessary further detail or information .... In my view, the general nature of HDW's retainer by Turner was fairly and accurately summarised by Mr Horace Watkins in paragraph 4 or his first Witness Statement as follows:"

"Turner were very experienced in this type of work ... they were familiar with the construction requirements of building creameries for various clients. We were not required to provide a full design service or supervise or inspect the construction works. Instead we had an arrangement to produce "drawings on demand". That is to say we provided Turner with the basic information to enable them to construct the project and any further details were produced as requested".

10. Furthermore, such was the informality of the overall arrangements under which the project proceeded that HDW appear to have carried out a certain amount of their work in connection with such matters as seeking detailed planning consent and Building Regulation approval at the direct request of Mr Lucas on behalf of Unigate Western.

11. So it was that HDW produced the basic construction drawings for the dairy (all of which appeared under Turner' name), they dealt with and obtained approval in respect of the matters which had been reserved for detailed approval in the outline planning permission ("the reserved matters"), in which capacity they clearly acted as agents for Unigate Western, they dealt with Building Regulation approval for the project and the co-ordinated the design input of the structural engineers D. Fowler & Associates."

9. On 28 August 1981 Watkins submitted an application for detailed planning permission for the dairy on behalf of Unigate. On 21 September 1981 they submitted an application for Building Regulation approval, which Newport treated as an application for approval of reserved matters, enclosing copies of various drawings including 853/11 which, with drawing 853/10, shows the layout of the dairy, and 853/13 which shows the construction in section.
10. In early October 1981, drawing 853/11 was revised to become Drawing 853/11A to accord with Newport's Planning Control Department's requirements. On 14 October the Newport Planning committee approved the details in the drawings and on 15 October the Chief Fire Officer made recommendations. On 21 October Newport wrote to Watkins requiring:

"16. Indicate on plan the first floor construction and which is to have a fire resistance of 2 hours, and all supporting elements to the floor are also to have a fire resistance of two hours."

11. On 23 October 1981 Newport rejected the building plan on the basis of non-compliance with Building Regulations in various respects.
12. On 19 November 1981 Watkins responded to Newport's letter of 21 October by sending (inter alia) a further revised Drawing 853/11C ("Drawing 11C").
13. The main revisions shown in Drawing 11C were as follows. The position of the fire compartment walls on the first floor laboratory and office area were indicated by means of a thick black line. Such a line ran along gridline 2 to which was attached an annotation in bold print, itself framed with a black line as follows:

"2 hour fire rated wall taken up tight to underside of external roof sheets and roof underdrawn with fire liner protection for a distance of 1.500 minimum either side of wall."

For convenience I shall refer to the liner protection requirement as "the 1.5 metre fan".

14. Further, on the right hand side of the drawing under the heading "PLEASE READ CAREFULLY", appeared a number of notes which included:

"Your Attention Is Drawn To The Following

All work to comply with the appropriate building regulations, local authority byelaws, conditions of consent and stipulations etc. And requirements of statutory bodies.

...

All work to comply with the appropriate British Standard Institution codes of practice.

All materials and components to comply with the appropriate British Standards Institution specifications

...

In all case of doubt or discrepancy please refer to Architect for instructions."

15. That drawing was distributed on site at Construction Meeting No 5 on 10 November 1981, in particular to Turner and Unigate Western.
16. At Construction Meeting No 6 Mr Hopkins on behalf of Watkins attended and reported a successful meeting with the planning committee at which he had obtained a relaxation on the concrete casing of columns and that only grids 2, 3 and 4 now had to be encased with concrete to the underside of the portal porch together with all beams at first floor level. On 11 December 1981 Watkins provided a specification for the suspended ceiling work with drawings and on 19 December were asked to provide a specification for the sub-contractors.
17. On 15 February 1982 Turner engaged a specialist sub-contractor, Boddy-Moir Roofs and Ceilings Limited ("Boddy-Moir") to do the specialist construction work relating to the roof and ceiling of the dairy. They also required Body-Moir to do the necessary fire lining work to the ceilings adjacent to the first floor laboratory and office area compartment walls ("the fire lining"). In a Question and Answer Sheet produced on 2 March 1982, Turner asked Watkins to provide further design information namely:

"Whether under purlin lining should be erected/suspended over ceiling/if not? Suspension to same. Ceiling specification and tiles. 1.500 fire barrier and cavity barrier."

Watkins answered:

"Fire Barrier 2 hours F[ire] R[ated] to cover this area. Body-Moir to sort out methods of support for suspended ceiling."

18. At Construction Meeting No 12 held on 2 March 1992 the fire lining adjacent to the compartment walls was discussed in such a way as to make it obvious that the need to provide upstands to the fire lining on each side of the compartment wall was fully understood. The minutes recorded at paragraph 9.3:

"It was agreed that the under purlin fire lining would finish 1.500m away from the first floor Mezzanine walls, and for the 2 hour fire barrier to be suspended across the office and laboratory areas. This would omit the necessity of fixing upstand closures over the Mezzanine area only."

Paragraph 9.5 of the minutes recorded a request to

"Mr D Hopkins to produce revised ceiling layout indicating a lay-in grid system for the office area, incorporating a top hat electrical trunking."

19. However, as the judge found, Turner did not ask Watkins to provide any further design information about the construction details needed to achieve the requirements for the compartment walls and adjacent fire lining as set out in Drawing 11C and further discussed at the meeting.
20. On 16 March 1982, Body-Moir provided Turner with a quotation for the additional work involved in providing the necessary fire lining to the ceilings adjacent to the compartment wall as follows:

"Supplying and fixing 1200x600x9mm Supalux Natural finish fixed through 9mm Supalux Fillets into a concealed galvanised grid system on rigid hangers, all to form 2 hour fire resistant lining £13.58 per m²

Ditto as upstand n.e. 300 mm wide £6.58 per m.l.

Cut and fit to "Z" purlins £2.50 each"

21. On 20 April 1982 the minutes of Construction Meeting No 15 record that:

"5.4 Mr David Hopkins put forward a system for fire sealing the expansion joints in the block fire walls and also to the fire doors and frames by Man McGowan Limited. This material was accepted in principle and work to proceed accordingly."

22. On 27 April 1982 Watkins wrote to Newport:

"To confirm our recent verbal advice to your Mr A Parker that the horizontal slot holes to the First Floor slab – (N.C.C.) rooms will be infilled and fire stopped in concrete to 2 hours fire resistance."

23. The minutes of Construction Meeting 16 of 11 April 1982 and Construction Meeting 17 of 1 June 1982 make clear that the fire lining work adjacent to the compartment walls commenced on 11 May 1982 and was 45% complete by 1 June 1982, at which stage Body-Moir went into liquidation, although it appears that some of their men continued working on the site after that date as recorded in the minutes of Construction Meeting 18 and 19 dated 15 June and 6 July respectively. By 15 June 1982 the fire lining work was recorded as 80% complete and the internal block work on ground and first floor (i.e. including the compartment walls) as 98% complete.
24. On 16 June 1982 Drawing No. 853/93 was issued to Turner entitled "Head Detail to Fire Wall". It shows a cross-section of the head detail in question, including a cross-section of one of the portal frames above the cross-section of a wall constructed of "100mm or 140 mm thick concrete blocks". The drawing showed the polystyrene insulation being carried over the top of the wall without interruption and the 1.500m wide fire lining was shown without indicating any upstand.
25. On 30 June 1982 Newport wrote to Watkins observing that during an inspection of the property by a Building Control Officer it had been noted that:

"Fire-stopping is to be provided at the junction of the compartment wall and roof."

It is important to note that 'fire-stopping' (as distinct from 'fire lining') is on the face of it a reference to the filling in of voids formed by roof corrugations above blockwork brought up tight to the underside of the roof by mortar or other non-combustible material.

The letter asked Watkins to contact Newport to advise when the works had been carried out in order that a further inspection could be made. On 13 July 1982 Watkins replied:

"Further to your letter dated 30th ultimo, and the subsequent telephone conversation per your Mr Flynn and the writer we would confirm the following...

(b) Reference item (2) of your letter, please find enclosed two No copies of our drawing no. 853/93 - for your information, we would mention that this drawing was issued to the contractor mid-June 1982."

26. It is also important to note that the judge found that Drawing 853/93 was neither the design for, nor did it contain any design principle for use in connection with, either the head of any of the compartment walls (in particular that on gridline 2) or the fire lining adjacent to any of the compartment walls, (as was pleaded and argued by Turner). The judge said he was satisfied that the drawing was never used by Turner for the purposes of constructing the fire detailing of the compartment walls and adjacent fire lining. It is convenient to set out the judge's reasoning in this respect as set out in his judgment:

"39. Apart from the complete absence of any direct evidence that such was the purpose for Drawing 93 or that Turner used it to construct the fire detailing in question ... Drawing 93 was not issued until the fire lining work and compartment walls were almost complete (80% and 90% respectively). Furthermore, the drawing was clearly not concerned with any of the compartment walls, because the compartment walls were designed to be 215mm thick and, in the case of the compartment walls on gridlines 2 and 3, were situated at right angles to the portal frames and not, as depicted in Drawing 93, running in the same direction as the portal frame. I agree with the submission made by Mr Taverner QC on behalf of HDW that it is likely that Drawing 93 depicts a location at the head of the wall along gridline D between gridlines 2 and 3, looking north or south and it is to be noted that "As Built" Drawing 853/11G shows a dotted line on gridline D, with the following annotation:

"Dotted line thus indicates Block work taken up above ceiling level to underside of roof as fire barrier (my emphasis) ..."

As it seems to me, the expression "fire barrier" in that note is consistent with the expression "fire wall" used in the title of Drawing 93: see also the concession to the same overall effect in paragraph 6(8) of the Reply to the Part 20 Defence. Furthermore, locating Drawing 93 in this position would also explain why no upstands to the fire lining are shown on the drawing, because the cross-section in the drawing includes the side view of a purlin, which would be obscured if the upstands were also included.

40. In my judgment, therefore, Drawing 93 ... has nothing to do with any of the issues which fall to be decided in this case and I reject the various submissions to the contrary effect made by Mr Dennys QC on behalf of Turner."

27. That being so, there is no record of a response by Watkins to Newport's request to be notified when the work of fire-stopping had been carried out. However, on 11 August 1982 Newport sent notice to Unigate of the passing of the Building Plans. Such notice being passed on by Watkins to Turner on 17 August 1982. Following completion of the work and the opening of the dairy in June 1983, Watkins submitted their final fee for their partial services on 9 March 1984, for which they received payment. It was only after the investigation following the fire in May 1995, that Watkins became aware that, in fact, the compartment walls and adjacent fire linings had not been constructed in accordance with the specified requirements of Drawing 11C. The omission material to the Part 20 Claim was that the compartment wall along gridline 2 had generally been taken up to the underside of the polystyrene insulation only and not tight to the underside of the metal roof sheet above it as required. It also appeared that no upstands had been provided to the fire lining on either side of the compartment wall. Furthermore, between gridlines J and K, the compartment wall on gridline 2 had not even been taken up as far as the polystyrene insulation; an entire course of block work was missing between those two points, that being the very area in which the fire had gone over the wall. It was the consensus of the evidence over 20 years after the event, that Turner had left the final course unbuilt for access purposes but had forgotten to close it up again. Furthermore, although it appeared that some 'fire-stopping' had been carried out between the top of the block work and the polystyrene on gridline 2, it was largely ineffective and, between gridlines J and K, it was non-existent.
28. On the basis of those omissions, various Unigate companies claimed damages of approximately £6,000,000 against Turner for breach of duty and negligence. As already indicated in paragraph 2 above the essential allegation against Turner was not one of defective design but of poor construction. It was alleged that the wall along gridline 2 should have been built as a 2 hour fire rated compartment wall "as noted on [Watkins'] Drawing 813/11C and 853/13C and complying with Section E of the Building Regulations 1976."

THE JUDGMENT OF THAYNE FORBES J

29. Having set out the history of the matter at length and his analysis of the purpose and function of Drawing 853/11C (to which I shall refer further below) the judge dealt with the issues which arose on the pleadings and the written opening submissions prepared by Mr Dennys QC on behalf of Turner, namely

"1. Did HDW [Watkins] owe a duty of care to Unigate UK?

2. What was the scope of any such duty of care?

3. Were HDW in breach of any such duty of care?

4. Are Turner entitled to a contribution from HDW under the provisions of the 1978 Act in respect of the settlement made by Turner in the Unigate proceedings ..."

30. As to issue 1 the judge recorded that in the light of the decision of HH Judge Peter Bowsher QC in Baxall Securities Limited –v- Sheard Walshaw Partnership (2001) BLR 37, Mr Taverner QC for Watkins accepted that Watkins could owe a duty of care in tort to Unigate UK in respect of latent defects in the dairy in respect of which there was no reasonable possibility of inspection. However, this fell short of the submission of Mr Dennys QC for Turner that Watkins owed a duty of care "to design the two hour fire rated compartment wall along gridline 2 with reasonable care": see also paragraph 3.3. of Turner' Part 20 claim. The judge therefore turned to issue 2, namely what was the scope or extent of any duty of care owed to Unigate UK. In that respect, the judge stated as follows:

"58. The question whether a particular defect in a building comes within the scope of an Architect's duty of care to a subsequent occupier will depend upon the original design and/or supervisory obligation of the Architect in question. The Architect will not owe any such duty of care in respect of defects for which he never had any design or supervisory responsibility in the first place. In the ordinary way, the Architect's design and supervisory responsibilities will be those which are required of him by the express and implied terms of the contract under which he is retained there will be a concomitant duty of care in tort in respect of each such responsibility. These propositions do not appear to me to be controversial and I did not understand Mr Dennys to argue otherwise.

59 It was Mr Dennys' submission that it was clear from the terms of HDW's retainer by Turner that "the scope of (HDW's) retainer ... extended to the provision of all necessary details to indicate compliance with the Building Regulations 1976 as amended; and adequate construction details to enable the dairy to be completed in accordance with HDW's design intent." (See paragraph 20 of Mr Dennys' written Opening Submissions).

In effect, it was this submission which founded Turner's fundamental assertion that HDW "agreed ... to design a two hour fire rated compartment wall along gridline 2. [HDW] had a duty to ensure that the said design complied with the appropriate Building Regulations" (see paragraph 4 of the Part 20 Claim).

It is in respect of that alleged design responsibility that it is said that HDW were negligent and in breach of their duty to use reasonable care and skill: see paragraphs 3 and 9 of the Part 20 Claim and paragraph 3(a) and (b) of the Reply to the Part 20 Defence.

"60. However, as I have already explained in my findings of fact, HDW's position as Architects in connection with this project was an unusual one. HDW were subcontracted to provide "partial" architectural services" to Turner who were not only main contractors for building the dairy but who had themselves contracted with Unigate Western to carry out the further necessary work of design. So it was that, in accordance with the agreement between them, HDW provided Turner with the necessary basic drawing for the construction of the dairy, but they were never required nor did they agree to produce a detailed design for the construction of a fire resistant detailing at the head of the compartment walls or of the adjacent fire lining. HDW produced a drawing 11C, not as a detailed design of the work needed to achieve the required fire rating (nor was it ever regarded as such), but as a drawing which gave Newport the information which had been requested for Building Control purposes. If and insofar as Drawing 11C can be said to involve any work of design by HDW, it was entirely satisfactory for such purposes (i.e. Building Control).

61. As it happens, Drawing 11C also provided Turner with a clear and sufficient specification for the construction of the compartment walls, floors and adjacent fire lining in order to achieve the required fire rating. Turner were experienced contractors and they retained specialist sub-contractors to carry out the necessary fire lining work. If Turner needed any further information or detail as to the method or precise form of construction of any of those elements of building design, they would have asked HDW to provide it but they never did. In my judgment, the nature of HDW's retainer as architects for the provision of "partial services" to Turner was such that HDW were not under any obligation or duty to provide any such information or detail with regard to the construction of the compartment walls and/or fire lining, in the absence of a request from Turner that they should do so. In other words, it was for Turner to take the initiative in seeking such further information or detail. For those reasons, I have come to the firm conclusion that HDW did not agree to provide "a complete" design for "a 2 hour fire rated compartment wall along gridline 2" as alleged and the design responsibility for such a wall was never any part of HDW's contractual obligations to Turner whether express or implied. Accordingly, I am also satisfied that HDW did not owe any concomitant duty of care in tort in respect of any such design responsibility (either to Turner or Unigate UK) it follows that the Part 20 Claim must therefore fail for that reason, whether or not, any resulting defect in the building was a latent defect."

31. So far as concerns the role of Turner and their specialist contractors Boddy-Moir in relation to the fire protection at the head of the compartment wall, the judge dealt with the matter in this way. He held that the meaning of the notes on Drawing 11C was perfectly clear in that they provided for the double precaution (1) that the compartment wall was to be 'tight to the underside of external roof' ie through the internal polystyrene insulation immediately below the roof sheets and (2) as was common ground between the experts, that, by virtue of the relevant Building Regulations (the provisions of which it is not necessary to set out in this judgment) the fire liner protection for 1.5m either side of the compartment wall required to be taken up through the polystyrene insulation to the underside of the roof sheets, and the junctions between the compartment walls and the roof and the upstands and the roof to be fire-stopped.
32. The judge observed, that, had those requirements been met, they would have satisfied the Memorandum of Agreement between the experts (Mr Hudson for Turner and Mr Forbes Bramble for Watkins) as follows:-

" ... with the inclusion of combustible polystyrene insulation sheet immediately below the profiled steel sheet, the fire liner would have been necessary over the prescribed zone of 1.5metres on each side of the compartment wall. Such fire liner would need to have return ends (upstands) taken through the polystyrene insulation sheets and fire-stopping at the abutment to the profiled steel roof ...

1.9 ... forms of construction that would have been satisfactory and could have been used to provide building regulation compliance of the 2-hour rated compartment wall and its junction with the roof ... are ...

(iii) the compartment wall taken up to the underside of the corrugated sheet steel roofing complete with fire-stopping corrugations, the 1.5m zone lined with a 2-hour fire resistance underlining complete with upstand. No polystyrene within the 1.5m zone, the thermal insulation being provided by the mineral wool backing to the underlining.

(iv) the compartment wall taken up to the underside of the polystyrene insulation (which passes over the top of the wall) and protected by 1.5m wide 2-hour fire resistant zone consisting of an underlining and upstand. The upstand fitted into the corrugations of the roof sheeting and fire stopped to it."

33. At paragraph 23 of his judgment, the judge expressed himself satisfied that, once Turner was provided with Drawing 11C at the site meeting of 10 November, or shortly thereafter, it became clear to Turner that in order to meet the specified requirements in respect of fire protection it would be necessary to construct the compartment walls and the upstands to the adjacent fire lining so as to take them through the polystyrene insulation and tight up against the underside of the metal roof sheets, (without which the necessary requirements of the Building Regulations could not be achieved) and for the junctions between the compartment walls, the upstands and the roof to be properly fire-stopped. At the same time, the judge acknowledged that Drawing 11C did not provide a detailed or 'complete' design of the form of the fire lining in question and, in particular, of the junction between the roof sheets at various points and the compartment walls and upstands. He said he was satisfied that it was not so intended. In that respect, he accepted the assessment of Mr Forbes Bramble in his first expert's report that:

"The drawings provide the design parameters for Turner(s) to follow. This was a sufficient indication of the design intention to a reasonably competent building contractor such as Turner(s) that they were to construct the wall and the necessary details in accordance with the overriding requirement that it should be a compartment wall with a 2-hour resistance."

34. The judge concluded at paragraph 26 of his judgment:

"If Turner had required any further detail with regard to the particular design or method of construction required to achieve any of the specified requirements of Drawing 11 C with regard to the compartment floors, walls or fire lining, it would have been open to them to seek clarification or further detail from HDW in accordance with the contractual arrangement which existed between them, but Turner never did. No query was ever raised as to whether what was specified could be built and I am not persuaded that the specified requirements presented any particular difficult constructional problem for a contractor of Turner's experience. Furthermore, so far as concerns the detailed design of the fire lining, as Mr Forbes Bramble indicated in his evidence, I am satisfied that this could properly be left to the expertise of the specialist sub-contractor who was engaged to carry out the necessary work, as is frequently (if not invariably) done in such cases. "

35. The judge then turned to the sequence of events involving Boddy-Moir (see paragraphs 17-20 above). He then stated as follows:

"31. It was common ground that Boddy-Moir were specialist sub-contractors for this type of work. I am satisfied that, as specialists in this field, Boddy-Moir would have been fully aware of the need to provide suitable upstands to the fire lining so as to comply with the relevant Building Regulations and to make it fire resistant to the required standard ie by taking the upstands through the polystyrene insulation so that it was tight up against the underside of the metal roof sheets and fire stopped and there was no evidence to suggest otherwise."

32. There is also no reason to doubt that, as specialist sub-contractors, Boddy-Moir would have been able to carry out the detailed design of the fire lining, including the upstands, to achieve the required fire resistant rating. Nor is there any reason to doubt that Boddy-Moir did design the fire lining in question including upstands, although details of that design are no longer available. Boddy-Moir's quotation of 16 March 1982 clearly indicated that suitable upstands for the fire lining were to be provided. Boddy-Moir were specialist sub-contractors who could properly be expected to appreciate the need to take the upstands tight up against the underside of the metal roof sheets and, where necessary, through the polystyrene insulation, so as to satisfy the requirements of the Building Regulations and common sense. If any clarification or further detail of the specified requirements had been required to enable Boddy-Moir to complete any aspect of their detailed design of the fire lining, HDW would have been asked to supply it, but they never were asked to do so. Given that Boddy-Moir were specialist sub-contractors, this is not particularly surprising. I accept the evidence of Mr Forbes Bramble to the effect that fire lining work of this type is invariably done by specialist sub-contractors, that they are skilled operatives with specialised know-how, skills and materials to whom the architect issues directions as to what to do 'at his peril' (see transcript: Day 5, pages 99 to 100) and that:

"Boddy-Moir are a specialist firm ... and a specialist has my respect, it is a complicated job and they are usually very good at it. They were given the drawing (Drawing 11C) with the parameters on it. I would expect Boddy-Moir to know precisely what that meant." "

36. Having observed that the fire lining work adjacent to the compartment walls was 45% complete by 1 June, at which stage Boddy-Moir went into liquidation, the judge did not deal further with the progress of the matter save to observe that, by the time Mr Flynn went round the site on 30 June 1982, it appears that most of the fire lining work had been completed and, as the judge made clear, there was no reliable material as to what happened or what Mr Flynn saw. Equally, there was and is no evidence whatever that Watkins, who had no supervisory role, were aware, let alone informed, that the compartment wall had not been taken up to the roof or that the fire-lining with upstands discussed with, and contracted to be fitted by, Boddy-Moir had apparently not been fitted, or that fire-stopping was not carried out.
37. The judge dealt only briefly with issue 3, i.e. whether Watkins were in breach of any duty of care by referring to the particulars of negligence pleaded at paragraph 9 of the Part 20 Claim, as follows:

"9. Insofar as the compartment wall failed to provide 2 hour fire protection as alleged in the claimant's claim, then such failure was due to a design defect arising from (HDW's) negligence and/or breach of duty ...

Particulars

(i) the polystyrene was detailed to run over the top of the wall;

(ii) there was no return upstand detail to close the fire sheets to the metal roofing."

38. The judge held as follows:

"63. It is clear from the terms that both Part 20 Claim and the Reply to the Part 20 Defence, that the allegations of negligence are based on what are said to be the shortcoming of Drawing 93. However, for the reasons given earlier in this judgment, I am satisfied that Drawing 93 had nothing to do with the design or construction of the compartment walls or the adjacent fire lining. Furthermore and also for the reasons given earlier, Drawing 11C satisfied Newport's building control purposes and it also provided a clear and sufficient specification for and (as it happens) a sufficient indication of an appropriate design intention for the proper construction of the compartment walls and adjacent fire lining. In my judgment, HDW did use reasonable skill and care in the production of Drawing 11C and, therefore, none of the alleged defects with regard to the compartment walls and/or fire lining can be said to result from any breach of duty of care on the part of HDW with regard to it.

"64. Conclusion. Having regard to the firm nature of my conclusions on the first three issues and to the existing length of this judgment, I do not consider it necessary to deal with Issue 4. Accordingly, I have come to the conclusion that for the foregoing reasons this Part 20 Claim must be and is hereby dismissed."

THE GROUNDS OF APPEAL

39. The grounds of appeal, as argued by Mr Dennys QC for Turner may be summarised as follows:

i) It is said that the judge was wrong in law and upon the evidence to conclude that the scope of Watkins' duty to Unigate in relation to the design of the fire protection for the dairy was limited by the scope of their retainer by Turner to be purely responsive in nature ie an obligation to produce "drawings on demand".

ii) The judge ought to have held that an architect who undertakes to satisfy the local authority that the design provided by him is in conformity with the requirements of Building Regulations, owes a duty to any subsequent owner, to ensure that the design is sufficiently complete to enable the building to be constructed in such a manner as will safeguard the health and safety of those subsequently occupying it.

iii) The judge ought to have concluded that Watkins' duty to Unigate was not merely to produce an outline design with a specification of the fire protection to be achieved as in drawing 11C, but to produce a detailed drawing as to the manner in which it was to be achieved in order to enable Turner to construct the dairy so as to be safe for subsequent occupiers.

iv) Having held, as he did, that Watkins in principle owed a duty of care in relation to work undertaken by them to make provision for fire protection, the judge should have considered and made findings on the difficulties inherent in providing effective fire protection at the junction between the compartment wall and the roof in the light of the fact that the building was to be constructed with polystyrene insulation between the underside of the steel roof sheets and the compartment wall below as shown on some of the drawings; and whether it was essential, properly to realise the design, that further details of the intended design should have been provided;

v) If the judge had correctly directed himself as to the scope of Watkins' duty to Unigate, he would have found that Watkins were in breach of that duty by failing to produce a design in such detail as would enable the dairy to be built in a manner that would safeguard the safety of the subsequent occupants.

vi) Had he done so he would have found that Watkins were liable in respect of the same damage as Turner and therefore liable to contribute to the settlement between Turner and Unigate.

40. Finally, Turner complain that the judge was wrong to conclude that Drawing 853/93 did not show the architect's design intention in relation to the fire wall on grid line 2 and he was wrong (in so far as he did so) to hold that Turner did not rely on and follow Drawing 853/93 in that respect. He was also wrong to ignore the circumstances in which Drawing 853/93 had been sent to the Local Authority.

DRAWING 853/93

41. I propose to deal with that last ground first, because in my view it can readily be disposed of on the basis of the judge's finding of fact that Drawing 853/93 was not a detail of or relating to the head of the compartment wall on gridline 2: see paragraph 38 of the judgment. The thrust of the case appears to be that the judge should have inferred that nonetheless the drawing demonstrated the design "principle" which Watkins intended to be followed and which Turner adopted in constructing the compartment wall and adjacent fire lining, even though that principle would have been contrary to the clear requirements set out in Drawing 11C and the Building Regulations.
42. That submission has no direct evidence to support it. It was denied by Watkins, and Turner did not call any personnel, whether from Turner or Boddy-Moir, to suggest that they had taken Drawing 853/93 as a substitute of or amendment to Drawing 11C, or that it had been relied upon in any way in relation to the building or fire proofing of the compartment walls. Although alleged in the pleading, the evidence below utterly failed to justify the suggestion that Drawing 853/93 either showed, or would be taken by an experienced contractor such as Turner as showing, an intent to omit the upstands actually quoted for by Boddy-Moir. The individual points made by the judge in paragraph 39 of his judgment (see paragraph 26 above) were all points justified by the evidence given below. The view expressed in evidence by Mr Hudson, Turner's expert, that the drawing was meant to represent a principle to be followed at the head of the compartment wall, failed to deal with those individual points. It became clear in the course of Mr Hudson's evidence that his view to that effect had been reached as a factual conclusion based on his reading of the incomplete and unexplained correspondence and that it was not based on logic or the nature of the drawing.
43. The principal matter upon which Turner relied, both below and in this court, was the exchange of correspondence between Newport and Watkins referred to in paragraph 25 above. The letter of 30 June 1982 from Newport to Watkins was written by Mr Flynn, the Newport Building Control Officer, following a site inspection which had taken place shortly before, during which inspection he had met and gone round the site with a representative of Turner. Mr Flynn said he had no recollection of inspecting the fire-stopping, but recollected being on site when men were working at the top of the wall and, as he believed, 'sealing the junction'. He said that once the 'fan' ie the fire lining was in place, as it was on his next visit, the fire-stopping would not have been visible in any event. As the judge recorded at paragraph 34 of his judgment, it was clear that Mr Flynn, over 20 years on, had very little reliable recollection of what had happened on that visit or the circumstances in which his letter and Watkins' reply were written. Nor could Mr Hopkins remember the detail of the matter. Both he and Mr Flynn recognised that the enclosure of Drawing 853/93 under a reference to item 2 of Mr Flynn's earlier letter did not make sense, and each speculated that the explanation was to be found in the telephone conversation referred to in the letter of 30 July 1982 which neither of them could remember.
44. The only two witnesses called by Turner as to the events in 1981 were Mr Roberts, Turner's site agent, who was concerned with the co-ordination of the project on site, rather than being involved either in the contractual arrangements or in inspection, and Mr Kettle, Turner's contracts manager. Mr Roberts made clear that those with inspection responsibilities in respect of the wall and adjacent fire lining were (i) Mr Blackburn, the site manager, (now deceased) and (ii) Mr Gregory, the Clerk of Works, who was on site throughout most of the contract. Mr Roberts said that he 'understood' that the responsibility for the design of the head detailing to the wall was that of Mr Watkins. He said that he did not himself recollect the details of the top of the wall although, had there been any variation to the design shown on the drawings, he would have brought this to the attention of Watkins.
45. Mr Kettle, the contracts manager, visited the site to attend site meetings at which a Watkins representative would be present. He stated that the compartment wall was constructed in the middle third of the contract period and the fire protection at the head of the wall was carried out during the later fitting-out stage. He believed that the head detailing of the wall took place towards the end of the project by which time the polystyrene layer was already fitted throughout the roof of the dairy. He recalled that the wall was of 9 inch block and that the head detail included fire liner board of a metre and a half extending on either side of the wall at the top. He said that Boddy-Moir, who had been the sub-contractors for the roof, were to do the work but, according to his recollection, Boddy-Moir went into liquidation and a sub-contractor called Anderoy was brought in to finish off their work; it was they who would have undertaken the work of installing the fire linings and suspended ceilings. He described Boddy-Moir as specialist cladding sub-contractors and that he recollected they had supplied very good quality drawings of what they proposed, which went to Watkins. He was sure that Watkins met Boddy-Moir to discuss the details. He stated that, in the event, Boddy-Moir went into liquidation before the work was completed, Anderoy undertaking the internal linings, fire lining and plasterboard work in their place. He said Anderoy did not prepare their own drawings but he 'believed' that they worked to Watkins' drawings and specifications.
46. The judge concluded that it was no longer possible to say precisely why Drawing 853/93 came into existence or precisely what purpose it served. However, he was satisfied that it contained neither the design nor the design principle for use in connection with the head of the compartment wall or the fire lining adjacent to it and he expressed himself satisfied that the drawing was never used by Turner for the purposes of constructing the fire detailing of the compartment walls and the adjacent fire lining. In the light of the failure of Turner to call as a witness Mr Lucas, Mr Gregory, anyone from the sub-contractors, or any figure responsible for inspecting or reporting the progress of the works of construction carried out, and bearing in mind also the passage of time and the incidence of the burden of proof, those were findings which the judge was entitled to make and which should not, in my view, be disturbed in this court.

THE SCOPE OF WATKINS' DUTY

47. The first general point to be made is that, as a matter of broad principle, the scope of Watkins' duty as architect towards Unigate UK as subsequent owner and occupier of the dairy was not in dispute before the judge. It was embodied in the two propositions articulated by the judge at paragraphs 57-58 of his judgment. First, an architect may in appropriate circumstances, owe a duty of care in tort and be liable to a subsequent occupier of the building which the architect has designed and/or the construction of which he has supervised in respect of latent defects in the building of which there is no reasonable possibility of inspection: cf the duty of the negligent builder as expounded by Lord Keith in Murphy v Brentwood District Council [1991] AC 398 at 460-465 and as applied to the position of architects by HH Judge Bowsher QC in Baxall Securities Ltd v Sheard Walshaw Partnership (2001) TCC 36 at paras 107 and 111. Second, the question whether a particular defect in a building comes within the scope of an architect's duty of care to a subsequent occupier will depend upon the original design and/or supervisory obligations of the architect in question. The architect will not owe a duty of care in respect of defects for which he never had any design or supervisory responsibility in the first place: cf the observations of Windeyer J in the Australian High Court in Voly v Inglewood Shire Council [1963] ALR 657 at 662.
48. It seems to me that the judge's exposition was a correct general statement as to the scope of the architect's duty, to which may be added the following. Third, if a dangerous defect arises as the result of a negligent omission on the part of the architect, he cannot excuse himself from liability on the grounds that he delegated the duty of design of the relevant part of the building works, unless he obtains the permission of his employer to do so, see Keating: Building Contracts (7^th ed) para 13-40 and Moresk Cleaners Ltd v Hicks [1966] 2 Lloyds Rep 338. Fourth, the detailed duties of an architect in relation to his design function depend upon the application of the general principles above stated to the particular facts of the case, including any special terms agreed. The precise ambit of such duties will usually depend upon expert evidence from members of the profession as to what a competent, experienced architect would do in the circumstances.
49. The second general point to be made is that the appeal before this court has been put upon a wider basis than the case advanced before the judge. The case, as pleaded below, alleged in broad terms that it was an express or implied term of the contract that Watkins' would use reasonable care and skill in supplying architectural services to Turner and a like duty in tort. These services were particularised in paragraph 1 of the Part 20 claim as:

i) Architectural design of the dairy including working with Unigate on the design development;

ii) Production of the 853 series of contract drawings

iii) Discharge of Planning Conditions attached to the Conditional Planning Approvals obtained by Unigate;

iv) Negotiation of the Building Regulations Approvals.

50. It was further asserted that the defendant agreed to design a 2-hour fire rated compartment wall along gridline 2 and that the defendant had a duty to ensure that such design complied with the Building Regulations. However, the breach of duty relied on was the assertion that Watkins' design for the fire detailing to the compartment wall along gridline 2 was that set out in the Head Detail Drawing 853/93. It was stated that Turner constructed the fire detailing in accordance with that Drawing and that, insofar as the compartment wall failed to provide the necessary fire protection, that failure arose from following that design which was defective, in that the Drawing showed (1) the polystyrene roof insulation running over the top of the wall and (2) no return upstand detailed to close the fire lining sheets to the metal roofing. Having failed to make good the allegation as to the supply of a specific (and deficient) design detail, which the judge was invited (but declined) to infer had been followed by Turner and/or Boddy-Moir, the focus of the appeal has concentrated almost entirely upon the contention that, if the judge was right in respect of Drawing 853/93, the failure of Watkins to follow-up the specification for the construction of the compartment walls and adjacent fire lining in Drawing 11C by provision of any detailed design drawing was negligent, and that the judge was wrong in applying the law to the facts of the case to hold that Watkins' duty to design fire protection for the dairy was limited by the scope of Turner's retainer to the production of 'drawings on demand'.

THE RESPONDENT'S NOTICE

51. At this point it is convenient to consider the terms of Watkins' respondent's notice, which takes two points. The first is that the judge could in any event have dismissed the claim on the ground that there was no liability in respect of the defects in the building complained of, because there was no evidence that such defects were latent or of a type as to which there was no reasonable possibility of inspection. Indeed, it is submitted that the effect of the evidence was to the contrary. The second point taken is that the case asserted by Turner was one of misfeasance by Watkins in supplying Drawing 853/93 as the detail of the fire protection required. There was no asserted case of non-feasance, i.e. that Watkins were in breach of duty because no design detail was supplied for the contractor to follow, other than the specification in Drawing 11C.
52. As to the first point, I do not think it is one which is available to Watkins in the light of the manner in which the case was pleaded and proceeded below. Watkins did not plead or actively advance the case that any duty of care owed by them to Unigate was negatived by the possibility of intermediate inspection. In the opening submissions the first issue identified was the scope of Watkins' duty. Paragraph 28 asserted:

" ... even if not contractually obliged to do things, if what Wat[kins] did do as a matter of fact was done without exercising the due and requisite professional skill and care, and such was causative of foreseeable and recoverable loss to the appropriate class, then they would be liable."

53. The assertion that intermediate inspection was relevant to the existence of the duty of care was first raised in Watkins' closing submissions, following a trial in which no evidence had been led which was directed to the question of the opportunity for reasonable inspection and/or what it would have revealed. Had the issue surfaced, there would have been a necessity to explore whether Unigate UK were in a relevant sense a subsequent occupier of the premises, when they became so, and what a reasonably competent survey might then have disclosed. There was no evidence or suggestion that Unigate UK actually knew of the relevant defects in relation to fire protection, which were hidden beneath ceiling layers and not open to direct visual inspection. In those circumstances, it seem to me inappropriate for this court to entertain an argument based on an assertion that, vis-à-vis Unigate UK, the defects were patent rather than latent.
54. So far as Watkins' second point is concerned, while I have commented in paragraph 49 above upon the shifted focus of this appeal, it does not seem to me that the arguments advanced before us are precluded, whether as a matter of principle or pleading. The argument that in this field of professional liability, only acts of commission, as opposed to acts of omission, are actionable was canvassed and roundly rejected by this court in Bellefield Computer Services Ltd v E Turner & Sons Ltd [2000] BLR 97 at 100-101 and 107. Nor does it seem to me that any pleading point is fairly open to Watkins in this respect. Although the focus of the argument has changed, the argument that it was necessary for Watkins to supply a detailed design in relation to the head of the compartment wall, and that the specification set out on Drawing 11C was insufficient in this respect, was pursued in cross-examination and in final submissions, albeit the deficiencies of design were said to be embodied in Drawing 853/93. I therefore turn to consider the question of Watkins' alleged breach of duty.

BREACH OF DUTY?

55. In finding as he did upon the scope of Watkins' duty under their particular arrangements with Turner, the judge was entitled to rely, as he did, upon the evidence of Mr Watkins, the only witness in a position to give direct evidence on that question. The judge said that Mr Watkins' evidence was encapsulated in the quotation from his witness statement at paragraph 9 of the judgment (see paragraph 8 above). However Mr Hopkins, the employee of Watkins concerned with the work, who was Watkins' senior assistant and chief assistant in their Major Contracts section also gave evidence on the question. Mr Hopkins stated the position in paragraph 14 of his witness statement as follows:

"Basically, the requirements upon H D Watkins were to provide sufficient drawings to obtain planning consent, provide sufficient drawings to obtain Building Regulation consent, to provide sufficient drawings to enable Turners to construct the project and over and above those basic drawings any other drawings to be provided. We had a phrase for it, we called it 'drawings on demand'. In other words if Turners felt that they needed a specific drawing for a specific matter and it hadn't been already prepared, then they would request it and H D Watkins would produce it." (emphasis added)

56. It is the complaint of Mr Dennys QC for Turner that, having accepted Mr Watkins' evidence, the judge was in error in holding that, because Turner never asked for a detail of the head of the compartment wall and adjacent fire lining, Watkins were thereby excused from providing it. He relies upon the fact that Watkins appear to have produced a number of ad hoc drawings during construction without it being clear that they were so requested. He also relies upon the fact that, whereas Mr Watkins said in paragraph 4 of his witness statement, as quoted by the judge at paragraph 9 of his judgment, that Watkins "provided Turner with the basic information to enable them to construct the project and any further details were produced as requested", he acknowledged in cross-examination that Watkins "were to provide such drawings as were necessary to enable the building to be properly completed" In this respect, his evidence was supported by Mr Hopkins in the words which I have emphasised in italics in paragraph 55 above. Thus, argues Mr Dennys, if (as he submits) it was necessary for a head detail drawing to be supplied to enable the building to be properly completed, Watkins were in breach of their obligation to do so both contractually so far as Turner were concerned and in tort so far as future owners were concerned, given the foreseeability of harm to a future owner from fire if the work necessary to ensure a 2-hour fire rating was not properly carried out.
57. Those submissions appear to me to be correct and, that being so, the question seems to me to resolve into that of whether or not, in the circumstances of the case, Drawing 11C (including the specific requirements endorsed thereon) was sufficient to enable the building to be properly completed, or whether a further drawing should have been supplied for the avoidance of error.
58. In this respect, the somewhat informal or, at any rate, ill-defined nature of the relationship between Watkins and Turner, their previous experience in working together and Turner's apparent acceptance of the Contract Drawings (as subsequently amended) as sufficient for the purposes of constructing the compartment wall and providing a fire barrier, combined to produce a somewhat 'grey' area so far as the necessity for a detail of the fire lining was concerned.
59. In seeking to illuminate that grey area, I approach the matter upon the following basis. It is reasonable to expect that in a matter which affects the design safety of a building, whenever the architect has reason to suppose that the achievement of a detail of construction which is not illustrated upon the contractual drawings but which it is necessary should be effected in a particular manner or to a particular standard, may present problems of interpretation and solution to the contractor or sub-contractor who is to effect the work concerned, there is an obligation upon the architect, before the work is done, to clarify with the contractor or sub-contractor his design intention and/or the solution to be employed. This will usually be best achieved by the supply of a detailed drawing. However, depending upon the nature of the detail or technique required, and the skill and understanding of the contractor or sub-contractor, it may be sufficient to resolve the matter by written instructions, by express approval of the contractors' or sub-contractors' proposed solution, or in direct discussions which render the matter clear.
60. In that respect, it was and is the case for Watkins, supported by Mr Forbes Bramble (whose evidence was accepted by the judge) that, having specified clearly on Drawing 11C the requirements (a) that the compartment wall be built tight up to the roof sheets and (b) that there was to be fire liner protection to comply with the appropriate Building Regulations, Watkins had made sufficiently clear to Turner (as constructors of the dairy) and Boddy-Moir (as expert sub-contractors in respect of the fire lining work) that the fire lining protection would require upstands also carried up tight to the roof sheets to provide a fire barrier and that fire-stopping in the roof corrugations would be required, such requirements in fact providing a 'belt and braces' solution to the problem. That was the case which the judge accepted.
61. The case for Turner is that this was a difficult and sensitive detail, involving as it did a roof lined with polystyrene which (despite the content of the written specification on Drawing 11C) was shown on another drawing as passing over the compartment wall and which required the creation of a barrier by use of upstands taken up through the polystyrene 1.5 metres away from the compartment wall so as to isolate the polystyrene layer. This process involved cutting through the grid supporting the polystyrene at the point where the upstand was located and it created a support problem for the upstand at a point remote from the purlins. It is not asserted that the necessity to provide fire-stopping was something which required to be detailed. Despite the assertion of Mr Hopkins that the detail required was one which was commonly used in 'every creamery in the country' Mr Forbes Bramble himself did not personally favour such a detail. However, he said it was permitted by the Building Regulations. Having considered the matter carefully and the various references in the transcripts to which we have been referred, I conclude that, whether or not Turner requested it, this was a case which required the architect, having clearly indicated his design intention, nonetheless to consider further with Turner and/or Boddy-Moir the manner in which the fire lining work was to be effected, so as to satisfy themselves that what was intended to be done would create a fire barrier adequate to comply with Watkins' design intention as expressed on Drawing 11C.
62. However, there is reason to suppose in this case that that was indeed done, and there is certainly no sound basis to conclude that it was not. As made clear by Mr Kettle, Boddy-Moir had supplied good quality drawings for their proposals, which included cross-sectional details for the cladding, and which went to Watkins who met Boddy-Moir to discuss the details. Unfortunately those drawings were not still available 20 years on. Having considered at paragraph 26 of his judgment that, absent a request from Turner, no further design drawing was called for (see paragraph 34 above) the judge went on to deal with the events which in fact took place and, in particular, the discussion at Construction Meeting No.12 (see paragraph 18 above) at which the need for 'upstand closures' was made clear and following which Boddy-Moir's quotation for the work involved included the installation of upstands. The judge went on to express himself satisfied that the need for the upstands to be taken tight up to the underside of the roof was clear. His finding that there was no reason to doubt that Boddy-Moir designed the fire lining with suitable upstands tight up to the roof sheets was a conclusion he was entitled to draw. He did not simply assume expertise on their part. He had heard evidence that Watkins had seen clear plans produced by Boddy-Moir (who were indeed experienced sub-contractors), had discussed the work proposed, and were themselves clear as to their fire protection requirements as set out in Drawing 11C.
63. Insofar as what took place might be said to amount to a delegation by Watkins to Boddy-Moir of the design of the detail, such design was plainly one which Watkins discussed and either accepted or modified as a proper fulfilment of their design intention, this being known and acceptable to Turner who were represented at the relevant meeting.
64. It is not clear, and the judge made no express finding as to the likelihood, that the necessity for fire-stopping in association with Boddy-Moir's work was discussed at Construction Meeting No 12. Certainly no reference to fire-stopping was included in Boddy-Moir's subsequent quotation. However, the judge had already found that such requirement (arising from the Building Regulations) was clear to Turner and there is no reason to suppose that Watkins' said, or would have been likely to say, anything to relieve Turner from the need to carry out, or ensure the carrying out, of the work. Nor, in any event, is there evidence that Watkins saw Boddy-Moir's subsequent quotation.
65. In my view, the judge was right to reject the inference which Turner argued should be drawn, namely that, in failing to carry the compartment wall and/or the upstands up to the underside of the roof, Turner and/or Boddy-Moir were acting in accordance with the perceived design intention of Watkins. As a matter of probability, it seems to me far more likely that the failure of Boddy-Moir to carry out the fire-lining work quoted for and approved resulted from the fact and timing of their going into liquidation. Inevitably this would have caused difficulties and the likelihood is that, in calling in a sub-contractor as a replacement before the work had been done, the position was not made clear by Turner in the rush to complete the works and that liaison and supervision (for which Turner and not Watkins were responsible) broke down in respect of the work to be carried out.
66. The position on the evidence is that, over a short period of time, Turner appear to have made a decision or permitted a situation on site whereby, contrary to the express requirement of Drawing 11C, the compartment wall was not carried up to meet the roof sheets and an entire block course was omitted without replacing it at the very point where fire went over the wall. It is also clear that, in those circumstances, Turner failed to provide the fire-stopping either because they overlooked it or because they considered it unnecessary. An explanation for the decision not to carry the wall up to the roof sheets was suggested by Mr Roberts of Turner in evidence to be that someone at Turner thought that to build tight up in that manner might cause "cold bridging", thus producing condensation. However that may be, it does not appear that the decision in respect of the wall, nor the reason for it was ever brought to Watkins' attention. They were not the supervising architects, although they attended site meetings. Finally, there was no evidence from the witnesses, nor any contemporary documents, to show that Watkins were aware of the failure of Turner to carry out, or require their sub-contractors to carry out, the work as specified in Drawing 11C or as agreed with Boddy-Moir.
67. Alternatively (and the judge did not so find), if Watkins were aware that the compartment wall was not, or would not be, taken up through the polystyrene lining tight to the underside of the roof with appropriate fire-stopping, nonetheless had the fire lining been properly installed with upstands similarly taken up to the roof with fire-stopping, as required by the Building Regulations, it was agreed between the experts that this would have created a sufficient fire barrier in itself. As the judge made clear, the combination of the compartment wall tight up to the roof with 1.5m upstands similarly installed, produced a 'belt and braces' solution either of which (with fire-stopping in the corrugations) would have been sufficient: see solution (iv) of the Experts' Memorandum of the Agreement (quoted at paragraph 32 above) and paragraph 20 of the judgment.
68. In circumstances of this kind, namely decisions and/or oversights by Turner uncommunicated to Watkins and the unexpected replacement of the relevant sub-contractor, and bearing in mind the difficulty for witnesses in recalling events almost 20 years before, the judge was entitled to find that the burden of proof which rested upon Turner in respect of both negligence and causation had not been discharged.
69. If, as I would hold, it has not been demonstrated that Watkins were in breach of their design obligation to Turner, I do not consider that the position is any different in relation to Watkins' alleged breach of duty to Unigate UK as the subsequent building owner. The function of Watkins as architects was limited to providing the drawings and/or instruction necessary to demonstrate the final result required by Turner and/or their sub-contractors. Watkins' agreement with Turner did not require or provide for inspection or supervision of the works concerned, for which Turner were responsible and in respect of which Mr Lucas was the Supervising Officer. This is not a case in which liability is said to turn upon some positive intervention by Watkins in the work of the contractors or upon some negligent failure in inspection or supervision. The only element pleaded and relied on by Turner in addition to Watkins' obligation of safe design is that set out in the grounds of appeal at paragraph 39 (ii) above namely the 'undertaking' of Watkins to satisfy Newport as the responsible local authority that the design of the dairy was in conformity with the requirements of the Building Regulations. It is said that, as a result of that undertaking, Watkins owed a duty to any subsequent owner to ensure that the design was sufficiently complete to enable the building to be constructed in such a manner as to safeguard the health and safety of the subsequent occupiers. Although couched in terms of an undertaking by Watkins, it is apparent that the matter relied on in the pleading was simply the combination of (i) Watkins' agreement with Turner to negotiate Building Regulations Approvals with Newport and (ii) Watkins subsequent supply to Newport and Turner of Drawing 11C containing the specification for the compartment wall and fire liner protections set out at paragraph 13 above.
70. It does not seem to me that putting the case in this way is apt to enlarge the obligation of Watkins to provide a design sufficient for the safe completion of the building, including 2-hour fire protection at the junction of the compartment wall and the dairy roof. On the available evidence, there is no reason to suppose that, when Newport approved the building plans on 11 August 1982, they were not satisfied that, so far as the compartment wall was concerned, Drawing 11C, together with any further explanations sought from or given by Watkins, was a sufficient indication for Newport's purpose of the design intention in relation to 2-hour fire protection. I do not accept that, in the circumstances of this case, Watkins thereby had an enlarged duty to ensure that the fire protection work was carried out, given the limited nature of their role. Again, one comes back to the position that Watkins were not supervising or inspecting architects; they were working for and with an experienced contractor who had, so far as the evidence shows, given Watkins no reason to think that their design intentions were not being carried out. In those circumstances Watkins, having fulfilled their design duty vis-à-vis Turner, cannot in my view be said to be in breach of a duty wider in scope so far as Unigate UK are concerned.

Conclusion

71. I would therefore dismiss the appeal.

Lord Justice May:

72. This appeals raises two significant points about the extent of an architect's duty of care in tort. The first concerns the scope of such a duty to a claimant who is a subsequent owner or occupier of a building for which the architect provided design services. The second concerns the extent of an architect's responsibility for the detailed working out of construction details where he has provided an underlying design.
73. An architect normally owes a contractual duty to his client and a parallel duty in tort – see Henderson v. Merrett Syndicates [1995] 2 AC 145 at 194. The parallel duty in tort may be coextensive with the contractual duty. The significance of the distinction between the duty in tort and the duty in contract usually relates to questions of limitation. The scope of the duty depends on the express and implied terms of the architect's contract of engagement. Those terms may be affected by the extent to which others – e.g. engineers, contractors, specialist sub-contractors – are also engaged to do things in relation to the building, the scope of their responsibilities and their interrelationship with the architect.
74. In the absence of a statutory duty or of assignment, collateral warranty or other contractual relationship, the duty owed by an architect to a subsequent owner or occupier has to be a duty in tort. Its existence and its scope depend on the extent to which the architect is taken to have assumed responsibility to the subsequent owner or occupier. The scope of any such duty cannot normally be larger than the architect's contractual and tortuous duty to his client. Forbes J was correct so to hold in the present case – see his paragraph 58. So much does not appear to have been in dispute. It is, however, important to emphasise that, although the scope of the duty cannot normally be larger than the scope of the architect's duty to his client, the two duties are not necessarily coextensive.
75. In the present case, there was extensive physical damage to property by fire. It was assumed – I think rightly – that, if the scope of Watkins' duty to Turner extended to guarding against the deficiencies of detailed design or construction which enabled the fire to spread beyond the compartment wall on grid line 2, their duty to Unigate (UK) Limited could also so extend. An analysis of the opinions in Murphy v. Brentwood District Council [1991] AC 298 would support this. HH Judge Bowsher QC was right so to conclude at paragraph 107 of his judgment in Baxall Securities v. Sheard Walshaw Partnership (2001) B.L.R. 36 at 52 – a case which also concerned physical damage. But I would reserve for future consideration the question whether or to what extent the scope of an architect's duty of care to a subsequent owner or occupier could extend to loss unassociated with physical damage.
76. The extent of an architect's responsibility for the detailed working out of construction details for which he has provided an underlying design again depends on the express and implied terms of his engagement and its interrelation with the responsibility of others. The scope of any such responsibility depends on the facts of each case. There is a blurred borderline between architectural design and the construction details needed to put it into effect. Borderlines of responsibility cannot be defined in the abstract. A carpenter's choice of a particular nail or screw is in a sense a design choice, yet very often the choice is left to the carpenter and the responsibility for making it merges with the carpenter's workmanship obligations. In many circumstance, the scope of an architect's responsibility extends to providing drawings or specifications which give full construction details. But responsibility for some such details may rest with other consultants, e.g. structural engineers, or with specialist contractors or subcontractors, depending on the terms of their respective contracts and their interrelationship. As with the carpenter choosing an appropriate nail, specialist details may be left to specialist subcontractors who sometimes make detailed "design" decisions without expecting or needing drawings or specifications telling them what to do. In appropriate circumstances, this would not amount to delegation by the architect of part of his own responsibility. Rather that element of composite design responsibility did not rest with him in the first place.
77. In the present case Watkins were engaged, not by the building owner, but by the contractor. They were not the supervising architect. The extent of the duty for which they were engaged was circumscribed as found by the judge. There were specialist sub-contractors for the fire lining engaged by Turner.
78. I agree with Potter LJ that this appeal should be dismissed for the reasons which he has given. In summary, the judge made findings as to the scope of Watkins' engagement by Turner. There is no appeal against that part of his judgment. Drawing 853/11C defined what was to be done. The judge made findings as to what the drawing meant and how it would be understood. There is, in my view, no proper basis for appeal against those findings. Drawing 853/93 had nothing to do with the compartment wall on grid line 2 for the reasons given by the judge. Turner never asked for more details of drawing 853/11C. At the meeting on 2^nd March 1982, the basis for doing the job along the compartment wall was modified. This included upstands on the south side of the wall only. Body-Moir's quotation was a specification by them which included upstands. No one asked Watkins to produce construction details. It was not established that Watkins had any duty to provide more details than they did. The fire spread because Turner did not take the wall up to the roof, as required by drawing 11C, and because the sub-contractor did not put in the upstand. Watkins were not engaged to supervise. They accordingly are not to be taken to have assumed any relevant responsibility to guard against the physical damage which occurred and would not be liable in tort for breach of any such duty to Unigate (UK) Limited.

Sir Anthony Evans

79. I agree with both judgments and that the appeal should be dismissed.