Legal Dispute over Contractual Obligations and Certificates in Construction Project, Study notes of Design

Download Legal Dispute over Contractual Obligations and Certificates in Construction Project and more Study notes Design in PDF only on Docsity! Covid-19 Protocol: This judgment is to be handed down by the judge remotely by circulation to the parties’ representatives by email and release to Bailii. The date for hand-down is deemed to be 16 March 2021. Case No: HT-2019-000372 Neutral Citation Number: [2021] EWHC 590 (TCC) IN THE HIGH COURT OF JUSTICE BUSINESS AND PROPERTY COURTS TECHNOLOGY AND CONSTRUCTION COURT (QB) Rolls Building Fetter Lane London, EC4A 1NL Date of judgment: 16 March 2021 Before : THE HONOURABLE MR JUSTICE FRASER - - - - - - - - - - - - - - - - - - - - - Between : Multiplex Construction Europe Limited Claimant - and – (1) Bathgate Realisations Civil Engineering Limited (formerly known as Dunne Building and Civil Engineering Limited) (In administration) (2) BRM Construction LLC (3) Argo Global Syndicate 1200 Defendants - - - - - - - - - - - - - - - - - - - - - Judgment - - - - - - - - - - - - - - - - - - - - - Alexander Nissen QC (instructed by Stephenson Harwood LLP) for the Claimant Lucy Colter and Will Cook (instructed by Weightmans LLP) for the Third Defendant The First and Second Defendants did not appear and were not represented Hearing dates: 16, 17 and 18 February 2021 - - - - - - - - - - - - - - - - - - - - - 7. The Third Defendant, Argo Global Syndicate 1200 (“Argo”), are RNP’s insurers. By reason of the Third Parties (Rights against Insurers) Act 2010 (“TPRAI Act”), Multiplex claims that the rights RNP had to be indemnified by Argo were transferred to Multiplex. RNP’s liability to Multiplex has not yet been determined, but is said to arise as a result of the independent design check performed by RNP on the design for the temporary works. Such an independent third party check is required under the relevant British Standard, namely BS 5975 (3rd edition, effective from 31 December 2008). It was also, as has been seen, required by Dunne under the terms of Dunne’s sub-contract with Multiplex, namely in paragraph 34.2.11; Part 1 of the Contractor’s Requirements (which is set out at [5](4) above). RNP was the independent third party design checker for the design of the slipform rig, and provided what is called a Category 3 design check on that design. RNP was engaged by Dunne to perform this design check for a modest fee of £3,978, in circumstances which I explain further below. 8. The heart of the case as a whole arises as a result of what occurred after Dunne went into administration. Multiplex terminated Dunne’s sub-contract, as it was permitted to do, and engaged an alternative specialist sub-contractor, Byrne Brothers Ltd (“Byrne”) to replace Dunne, and to complete the sub-contract works. At that point in mid-2016, Dunne had performed the concrete core slipform works to Building 1 up to level 7, out of the 37 levels required. It is said by Multiplex that those works had progressed only very slowly, but nothing turns on that in terms of resolution of the preliminary issues and any claim against Argo. When Byrne was first engaged, the first thing that it did was to investigate both the works to date, and the slipform rig as constructed on site. Byrne concluded that both were defective. Indeed, not only was Byrne not prepared to take responsibility for the performance of the slipform rig, but Byrne concluded that in some respects it was unsafe and should not be used. Multiplex therefore had the rig replaced, as part of wider works considered necessary at that time in order to proceed with Byrne, and to continue the project. The works thereafter proceeded with Byrne completing those the subject of the sub-contract between Multiplex and Dunne. 9. The costs of Multiplex replacing the slipform rig, and taking other remedial steps, form part of the substantial losses overall that Multiplex claims it has suffered as a consequence of the various breaches by each of Dunne, BRM and RNP in respect of the works at 100BG. The total claim is pleaded in the sum of over £12 million, including remedial works, delay, disruption and consequential losses. Default judgments have already been obtained by Multiplex against both Dunne and BRM. The limit on the policy provided by Argo is £5 million, and given RNP’s liquidation, any recovery against that defendant is said by Multiplex to be limited to that figure. 10. Multiplex claims that it is entitled to proceed directly against Argo to recover under the policy because RNP owed it, Multiplex, duties of care and/or had provided warranties direct to Multiplex. It also relies upon the terms of the TPRAI Act, but nothing arises in that respect under the preliminary issues, which are concerned with the existence of a duty of care and/or any warranties provided by RNP. Unless RNP did owe such duties, or provide warranties, directly to Multiplex, then Multiplex’s claim directly against Argo cannot succeed, hence the preliminary issues. B: The Issues 11. On 10 September 2020 Pepperall J approved the trial of preliminary issues agreed by the parties. These issues concern Argo’s potential liability to Multiplex. They were submitted as Schedule 1 to a consent order and (with a minor and agreed amendment in terms of substituting the names of RNP for Argo) are as follows: (1) Did RNP owe any duties and/or obligations to the Claimant in respect of the Category 3 Design Check Certificates provided by RNP to the First Defendant on 25 January 2016 and 4 February 2016? (2) Did RNP provide warranties to the Claimant? 12. The issues as originally ordered referred to the Third Defendant, Argo, and not RNP who provided the services to Multiplex, the Claimant. However, nothing turns on this, and it is Argo who is advancing the arguments against the imposition of a duty of care and warranties. The preliminary issues encompass what could reasonably be called classic duty of care issues arising on a complex construction project. Pepperall J endorsed the approach of the parties in seeking to have these issues determined first, and made clear that issues of breach were not encompassed within the issues that he ordered. Although he gave permission for each party to call expert evidence from a structural engineer, he indicated that he anticipated there would be a large measure of agreement between them and it would be unlikely that either would have to provide oral evidence at the trial of the preliminary issues. That anticipation proved correct. 13. Ordinarily, on the trial of preliminary issues, having set them out, the judgment would immediately address the evidence and the arguments in respect of them. However, in this case, that option is not immediately available, at least not without some explanation. This is due to the following matters that arose after the order of Pepperall J was made: 1. On 19 November 2020 the parties served their witness statements for the preliminary issues, Mr Bailey for Multiplex, and Mr Markham for RNP. 2. On 9 December 2020 Multiplex amended its case against RNP. In particular paragraph 35A, which was new and, by that amendment, added particulars in which the Category 3 design check was said to be defective. Existing paragraph 43 was amended to set out the duty of care alleged against RNP. The existing paragraph 44 was not amended; this already set out a case against RNP in negligent misstatement in paragraph 44(2). An amended Defence was produced following this, but no order was made in this respect. 3. On 10 February 2021 the parties served their skeleton arguments for the preliminary issues. Argo raised express reliance on certain of RNP’s Terms of Business (“the RNP Terms”) which were said to be incorporated into the contract between RNP and Dunne. These are set out in the Appendix to this judgment. Multiplex’s skeleton concentrated (arguably, almost exclusively) on its case in negligent misstatement. 4. On 16 February 2021, Argo re-amended its Defence. This was provided to me on the first morning of the hearing, together with a consent order. This pleaded in detail the incorporation of the RNP Terms into the contract between RNP and Dunne, and reliance upon the RNP Terms. 14. Although the re-amendment to the Defence set out in detail the RNP Terms relied upon by Argo, in particular those numbered 13.1 and 13.3, Argo had already pleaded that there was a contract between RNP and Dunne in paragraph 19 of its original Defence. That paragraph had stated that the contract arose in the following way: “Roger Tice [of RNP] responded [to an enquiry by Dunne] by email of 2 December 2015 at 10.53 enclosing a fee proposal. The “Quotation for Design services” was addressed to “Dunne Group” and was for a sum of £3,978. The quotation was accepted and formed the basis for the contract between Dunne and RNP for the provision of these services.” The Amended Defence had added to this and pleaded that: “It [ie the quotation] was stated to be based on the “RNP Terms” terms of business (and further stated: “This quotation is subject to RNP’s Standard Terms of Business unless otherwise agreed and noted within”) The RNP Terms (issue 02 Issue Date 08/2015) provided inter alia: “13.3 Nothing in this Agreement confers, or purports to confer on any third party any benefit or any right to enforce any term of this Agreement. In particular any advice provided by the Consultant is for the sole benefit of the Client and may not be used or relied upon by third parties’ ” 15. By the re-amendment of the Defence, the acceptance by Dunne leading to a contract was also expanded upon in that the pleading now stated: “The quotation was accepted by Dunne, in that it was content for RNP to carry out the Category 3 design check on the basis set out therein and it therefore formed the basis for the contract between Dunne and RNP for the provision of these services. RNP’s Standard terms of Business, including clause 13.3, where thereby incorporated by notice into the contract between Dunne and RNP.” The re-amendment also stated “Whilst Dunne sent a letter to RNP on 3 December 2015 referring to attached “Consultancy Agreement” [for RNP] to sign and return, there is no indication that the attachment was signed and returned on behalf of RNP”. 16. Mr Markham, RNP’s sole witness to be called for the preliminary issues, had given written evidence in his witness statement that he was involved on the technical side and that it was his co-founder of RNP, Mr Tice, who had dealt with the contract being agreed with Dunne. Mr Markham said he did not know if the terms of business had been sent to Dunne. He also said that “I was under the impression that the check was being carried out under RNP’s Standard Terms of Business. It was only subsequently that I became aware of this correspondence alluding to a possible Consultancy Agreement. As Managing Director, Roger Tice would have dealt with this task and I have seen no record of whether or not the Consultancy Agreement was signed and returned to Dunne. I do not recall ever seeing the Consultancy Agreement and I do not know if it was ever signed or returned to Dunne”. He gave no evidence of RNP’s usual practice in terms of contract formation either. 17. Both parties wished me to deal, in this preliminary issue trial, with what the terms of the contract were between RNP and Dunne, and whether that contract incorporated those terms which I have called the RNP Terms. Ms Colter for Argo did not seek either to call any additional witnesses, or deal with the point any further with Mr Markham (which was understandable, since he had said he was not involved) and although Mr Nissen accepted there was a contract between RNP and Dunne, he 2. In this case, the letter of 3 December 2015 from Dunne enclosing the Consultancy Agreement demonstrates on the balance of probabilities that Dunne did not specifically accept RNP’s quotation. That letter also serves as a counter-offer to contract on the terms of the Consultancy Agreement. It is unlikely that the Dunne Consultancy Agreement simply replicated the RNP Terms. This removes the possibility of acceptance by Dunne of the quotation of 2 December 2015 by conduct. There is no evidence that, after 4 December 2015, RNP made a further offer to Dunne contract on the RNP Terms. 3. There is no Consultancy Agreement available and there is no evidence that RNP accepted its terms. There is no evidence that it was ever signed and returned. No conclusions, one way or the other, can be drawn regarding what happened after the letter of 3 December 2015 from Dunne was received at RNP, nor from the fact that no copy of the Consultancy Agreement has been produced by any party in this litigation. This is because there is no evidence available from any source that would lead to any conclusions. 4. There is no evidence that Dunne later abandoned its position, set out in the letter of 3 December 2015, of seeking to have RNP contract with it by accepting the terms contained in the Consultancy Agreement. 5. There was a contract between Dunne and RNP. This is accepted by Multiplex. This contract was, in the absence of either party’s terms being accepted by the other, in simple terms that do not incorporate either the terms of the RNP quotation (which was not accepted by Dunne) or the Consultancy Agreement (there being no evidence that this was accepted by RNP). The simple terms upon which the parties were agreed were that RNP would, at Dunne’s request, perform the Category 3 check upon the design brief for the slipform rig for the agreed fee of £3978, and would provide Dunne with the relevant certificate. It was an implied term of that contract that RNP would use reasonable care and skill in performing that design check. 26. The result of these findings on contract formation is that the RNP Terms were not incorporated into the contract between RNP and Dunne. I will therefore address the legal arguments on the preliminary issues on that basis. I will, however, return briefly to this point at the end, and provide an alternative answer (if it is alternative) to deal with an alternative scenario, namely if Argo were entitled to rely on RNP’s standard terms in its dealings with Dunne. This will provide my answer to the preliminary issues in the event that I am wrong at [25](4) above. 27. In light of that, I therefore turn to consider the two preliminary issues, as set out above at [11]. The first issue concerns the scope of any duty of care owed by RNP to Multiplex for the performance of its duties in performing the Category 3 design check and the issue of the certificates. The second also concerns the certificates, but is in respect of warranties said to have been provided by RNP contained in the certificates and whether any warranties were provided by RNP directly to Multiplex. 28. Multiplex submits that the issues can be answered with a simple yes/no to each; indeed, that is all Multiplex seeks. The issues could potentially be answered in that way, and if the answer to either issue were to be “no”, then perhaps nothing further is required. However, if the answer to either issue (but particularly the first one) were to be in the affirmative, it seems sensible to go somewhat further than a mere “yes”. Simply being told, for example, that there was a duty of care owed, but not to explain further in terms of the scope of any duty were one to be owed, would not be of assistance to the parties. Nor, in my judgment, would a simple answer stating “yes” fit with the authorities, which state that the existence of a duty of care cannot be dealt with in the abstract. 29. Questions of breach are not, in my judgment, part of either of the preliminary issues. This has been made clear to the parties at earlier interlocutory hearings, including the one before Pepperall J on 10 September 2020 when he said: “if one or other party starts filing evidence at this stage where the expert is opining one way or the other as to whether there is a breach, for example, then the other side should not be responding to that, but should simply regard that as something that the judge at the preliminary issue trial will put a line through.” 30. I fully endorse those views. The preliminary issues were discussed and agreed by the parties, and approved by the court, on the basis that they would deal with the existence and potential scope of any duty of care and/or warranties as a matter of law, and not that they would delve into the potentially complex and factual domain of any breach of duty arising on the facts. This is clear from the wording of the preliminary issues themselves, and was made clear by Pepperall J at the hearing that approved them as a matter of case management. Notwithstanding that, some evidence on potential breach was adduced by the parties (for example by Mr Taylor the expert for Multiplex in his report). I do not address such matters in this judgment. 31. Reliance is however something that must be considered, in terms of reasonable reliance (in the sense of the use to which such certificates would be put). Actual reliance in fact in this case is not part of the preliminary issues. Multiplex also sought to cut off, as it were, any consideration of what happened after Dunne received the certificates. The reason for that is explained at [35] below and following, but basically this is because Multiplex were not, in any event, provided with the important first certificate in the form it was produced by RNP. Dunne changed the certificate, deleting certain parts, without RNP or Multiplex knowing this. C: Independent Category 3 Checks 32. Complex or innovative designs – which the temporary works being performed by Dunne for 100BG were – are referred to as Category 3 designs, as they appear in that relevant table within the British Standard itself, considered in more detail at [63] below. Such designs require an independent third party both to check and to approve them, in addition to the designer themselves. The third party must be from a different organisation than the designer. Lower category checks, such as Category 2, can be done by someone who is not the designer but is within the same organisation. The purpose of checks such as these are to ensure the integrity of the design of such works, and also to demonstrate that such design has been performed correctly. The requirement for a Category 3 check means the check must be done by an independent party. Argo accepts that part of the purpose of such a check is to ensure safety. 33. Multiplex was the main contractor on this construction project, and Dunne was its specialist design and build sub-contractor. Multiplex is not an entity removed from the contractual framework, or a later arrival to a project, such as a later occupier or subsequent purchaser of 100BG. Dunne was performing the works the subject of the design for Multiplex under its own specific and very detailed sub-contract, and was constructing them under that sub-contract too. This included designing and performing the temporary works. Indeed, the Temporary Works Design Brief Certificate provided by BRM to Multiplex dated 16 January 2016 was a template document provided by Multiplex and was on Multiplex headed paper. RNP was appointed by Dunne (and paid by Dunne), and the signed Category 3 Design Check Certificate provided by RNP dated 25 January 2016 was provided by RNP direct to Dunne. Dunne provided it (or to be entirely accurate in this case, only a partial version of it) to Multiplex. It was provided to Multiplex by Dunne as part of a package of information that dealt with the temporary works, which Multiplex required from Dunne in order to permit the temporary works to commence. 34. The first certificate stated the following on its face: “we certify that reasonable skill and care has been used in the preparation of this design/check to ensure that the calculations accord with the design brief, current industry practice and design codes”. The second certificate dated 4 February 2016 contained the same words. 35. There are however three factual complications in this sense. Although RNP provided two certificates – 25 January 2016, and 4 February 2016, which are identified in the preliminary issues – the first one included notes inserted by RNP on the face of the certificate in a section headed “Notes/Observations”, and this was sent to Dunne by RNP. The version of this certificate that was then sent on by Dunne to Multiplex not only had these notes removed, but had the entire box headed “Notes/Observations” removed too. These notes must have been removed by someone at Dunne, although it is not known exactly by whom. Multiplex did not receive the certificate as it was sent to Dunne. No explanation is available for why Dunne removed RNP’s “Notes/Observations” in this way. It is something that certainly calls for an explanation at some stage, and the certificate should not have been altered in this way. 36. Mr Tziogas-Papandreou of Multiplex reviewed the version of the Category 3 check certificate received by Multiplex (namely, the one with the notes removed) on 29 January 2016, and he identified errors and questions in the design. He gave this design status B. Status B is one of qualified acceptance; it is not a rejection, which would be status C. Although the certificate he reviewed was the one with the notes/observations from RNP removed, that was not at that time known to him or anyone else at Multiplex. Nor was it known to anyone at RNP. Indeed, it did not become clear until 2020 when disclosure took place in these proceedings. On 1 February 2016 Mr Bailey of Multiplex sent comments both to Dunne, and within Multiplex, asking that revised documents be submitted by Dunne as soon as possible. Mr Smith of RNP then provided an updated Category 3 check certificate to Dunne (the one dated 4 February 2016) on that same date in February. 37. A second factual complication is that there is no evidence that this second certificate was sent by Dunne to Multiplex until 22 June 2016, by which time, it is accepted by Multiplex, the slipform rig had already been in use by Dunne for some months. The revised design check was given status A by Mr Tziogas-Papandreou on 4 July 2016, a date which supports the conclusion that Multiplex did not have it until late June. Status A means acceptance. By then, no fewer than 10 different permits to load the temporary works had been issued by the TWC. 38. The temporary works were therefore commenced, and progressed for some months, using the slipform rig when the only certificate provided by RNP to Dunne had not 46. The concrete core was particularly large at 100BG, as it contained all the services, lifts and staircases for the building. This was to provide what are called clear span floor plates, which means that the whole of the floor area of each floor would be available for office space. The core also provided the entirety of the tower’s stability, given there was no lateral stiffness provided by any other structural element. For a high level building of this nature, the design of the permanent and temporary works would obviously be important and complex. 47. Paragraph 9.2.5 of the British Standard itself (addressed in more detail below in Part D of this judgment) states that “the package of information issued to the TWC” should include the Category 3 certificate. The initials TWC stands for Temporary Works Co-ordinator, which is an actual person, and in this case was Mr Bailey, the witness called by Multiplex who appeared before me in the trial of the preliminary issues. Dunne appointed a Temporary Works Supervisor, or TWS, a role which was occupied by a number of its employees, including Mr Keyur Soni, Mr Keith Wilmoth and Mr Declan McLaughlin. The role and responsibilities of the TWC and the TWS are set out at paragraph 7 of BS 5975. 48. In its claim against RNP, Multiplex pleads that the statements made in the Category 3 check were “made negligently in that RNP knew, or ought to have known, that the said statements were false.” Multiplex alleges that RNP was in breach of the duty to take reasonable skill and care in checking the design. Multiplex also alleges both that Dunne is liable for its contractual obligations in terms of design, and also that Dunne is itself liable under the terms of the Sub-Contract for the alleged failures of RNP and the alleged inadequacies of the Category 3 check. 49. Multiplex claims against Dunne that it (i.e. Dunne) was bound to comply with Statutory Requirements, pursuant to Clause 2.13.1 and .3 of the sub-contract. Statutory Requirements are defined in Clause 1 of the sub-contract and mean “any statute, statutory instrument, regulation, rule or order made under any statute or directive having the force of law which affects the Sub-Contract Works or performance of any obligation under this Sub-Contract”. The check carried out pursuant to BS 5975 is not, in itself, a Statutory Requirement but is a requirement of the CDM Regulations. Mr Nissen sensibly accepted that the CDM Regulations were part of the Statutory Requirements, a point made clear in clause 1.1. of the Sub- Contract which defines these. Statutory Requirements are defined as “any statute, statutory instrument, regulation, rule or order made under any statute or directive having the force of law which affects the Sub-Contract Works or performance of any obligation under the Sub-Contract”. They therefore include the CDM Regulations, which are a statutory instrument. Dunne was therefore contractually bound to Multiplex to comply with the CDM Regulations, which means to comply with the British Standard, which means obtain a Category 3 certificate. 50. Although it is not entirely determinative of the nature and scope of any duty of care, the way that the case is pleaded by Multiplex is illuminative and puts into perspective some of the submissions made, focused as they were on the ingredients of the cause or causes of action against RNP that Multiplex allege to exist. The case that Multiplex brings against RNP is set out at paragraphs 43 and 44 of the Amended Particulars of Claim. Paragraph 43 states that: “43. RNP owed a duty of care to Multiplex which arises out of its assumption of responsibility to Multiplex in its capacity both as Main Contractor and as Temporary Works Coordinator, as set out in the Reply. RNP knew or ought to have known that its design check certificate(s) would be seen and relied upon by Multiplex. Therefore, RNP were also, in the said premises, in breach of such duty of care and/or of the warranties set out in the Design Check Certificates, in that they had not used reasonable skill and care in the preparation of the design check to ensure that the calculations contained within the Dunne/BRM design accorded with the design brief, current industry practice and design codes”. 51. The case in negligent misstatement is set out in paragraph 44, in particular paragraph 44(2) which states: “44. Further or alternatively, the statements contained in the said certificates were: …..(2) made negligently in that RNP knew, or ought to have known, that the said statements were false.” (emphasis added) 52. Mr Nissen submitted that paragraphs 43 and 44 were both concerned with, and only with, negligent misstatement. I cannot accept that submission. Paragraph 43 is concerned with failure to use reasonable skill and care in the preparation of the design check, not the making of the statement (negligently or otherwise) or the issuing of the certificates. Paragraph 44 expressly states in its introductory wording “further or alternatively”. It cannot be read as re-stating the same subject matter as paragraph 43; it is additional to that. In my judgment paragraph 43 of the Amended Particulars of Claim goes wider than simply negligent misstatement, and alleges a duty of care generally in performance of the design check. This is important in terms of how Multiplex put its case in terms of the law of tort filling a gap in liability under the contractual structure or chain. Multiplex maintain that there is such a gap, and that it, Multiplex, would have no right of recovery against Dunne for a failure to take reasonable skill and care in making the statement in the certificate. 53. However, although that was the argument advanced at the trial of the preliminary issues, it is not the way that the case is put by Multiplex in its Amended Particulars of Claim. In paragraph 39, under the heading “Breach of Obligations”, the defective design of the slipform rig is alleged to constitute “a breach of the obligations undertaken by [Dunne] and [BRM], and RNP, in that the design had not been carried out with reasonable skill, care and diligence.” Particulars of that are then provided in the following paragraph: “40. Thus, Dunne (1) Failed to carry out and complete the Sub-Contract Works in a proper and workmanlike manner (breach of Clause 2.1.1); (2) Failed to exercise all the reasonable skill, care and diligence to be expected of a properly qualified and competent designer experienced in designing works of a similar size, scope, nature and complexity (breach of Clause 2.13.1); (3) Were, in the premises, in breach of the warranties and undertakings which they gave at Clauses 2.1.6.1 and 2.13.1 of the Sub-Contract; (4) Were in breach of Clause 2.13.2, and paragraph 21.16.8, Part 1 of the Contractor’s Requirements, in that the Category 3 check failed to comply with the Statutory Requirements, in the respects set out at paragraph 43(2) below. Particulars of sub-paragraphs (1) to (3) The design, whether as originally conceived, or as modified, was defective and fell below the standards to be expected of a properly qualified and competent designer experienced in designing work of a similar size, scope, nature and complexity to the Sub-Contract Works, in the respects set out at paragraphs 33 to 35 above. (5) Were in breach of Clause 2.13.2 and paragraph 21.16.8, Part 1 of the Contractor’s Requirements in that the Category 3 check failed to comply with the Statutory Requirements, in the respects set out at paragraph 44(2) below.” (emphasis added) 54. I have already explained how paragraph 44(2) is the part of the pleading that alleges negligent misstatement. Therefore, Multiplex’s clear pleaded case against Dunne is that Dunne failed to comply with the Statutory Requirements in the same terms as that case is advanced against RNP in paragraph 44(2), namely that the statements made in the certificates were made negligently. 55. Whatever the different ways that Multiplex advances its claim against Dunne, and whether it is a claim for breach of contract, breach of CDM obligation, and/or breach of Statutory Requirement, it is clear that they encompass the same complaints in respect of the alleged defects in the certificates (and the statements in the certificates) as are advanced against RNP. In my judgment, the important point can be summarised as follows from the contractual provisions. Dunne had direct contractual obligations to Multiplex to perform the design (including the design of any temporary works) using reasonable care and skill, and to comply with Statutory Requirements, which included obtaining a Category 3 check in respect of the temporary works design. Multiplex brings a claim against Dunne, both for breach of that direct duty, and also for failures in identifying what are said to be breaches by RNP in the latter’s exercise of reasonable skill and care. 56. Accordingly, Multiplex alleges failures against both RNP and Dunne for alleged failures by RNP in performing the Category 3 check. I have omitted detailed reference to the case Multiplex brings against BRM, based upon failures of BRM’s design responsibility, because that is not relevant to the claim Multiplex brings against RNP. 57. It can therefore be seen that, were Dunne and BRM still solvent and/or insured, the main thrust of Multiplex’s case would be against them. Certainly, as a matter of law, Multiplex has a cause of action against Dunne for the same matters advanced against RNP (or its pleading proceeds as though it does). The case against RNP would be an add-on to that main case. As it is, RNP (or more accurately, Argo, RNP’s insurer) may be the only party from whom Multiplex might realistically expect any recovery. This point is relied upon by Argo; paragraph 2 of the Amended Defence makes extensive reference to this, and states that “Multiplex has constructed an artificial claim against Argo in respect of the work carried out by RNP”. It also criticises the claim as seeking “to impose full design responsibility upon RNP in respect of the design of the slipform rig”. designer should be greater where new ideas are incorporated or the temporary works are complex. 9.2.2 Design checks should be undertaken in accordance with one of the categories given in Table 1. 9.2.3 For categories 2 and 3, the checker should carry out the check without reference to the designer’s calculations using only the design brief, design statement, drawings and specification and associated information not produced by the designer.” 68. It is common ground that RNP should not be given the designer’s calculations. The British Standard makes it clear that the independent checker is not to be provided with these. 69. The British Standard also stated the following: “9.2.5 On completion of the design and design check, a certificate should be issued for all categories, confirming that the design complies with the requirements of the design brief, the standards/technical literature used and the constraints or loading conditions imposed. The certificate should identify the drawings/sketches, specification and any methodology that are part of the design and it should be signed by the designer and design checker. The package of information issued to the TWC should include this certificate.” (emphasis added) 70. I have explained above that Multiplex, and the TWC, was not provided with “this certificate” (at least so far as the first certificate of 25 January 2016 is concerned) at all; it was provided with what appears to be an unauthorised alteration of the certificate, with the notes and comments removed. It was not provided with “this certificate” (meaning the second one of 4 February 2016) until the temporary works had been underway for some months. 71. There is no doubt that RNP was engaged by Dunne to perform an independent third party design check of the design of the slipform rig. The real question is whether, either by reason of performing that duty, or because performing that duty includes it as a component part, RNP owed Multiplex the wider duty alleged by Multiplex, which for Multiplex to succeed, must include a duty to hold Multiplex harmless from economic loss. 72. The way that duty is said to arise is as follows. Multiplex made clear in its Reply that its claim that RNP owed it a duty of care in carrying out the Category 3 check arises because there was a voluntary assumption of responsibility by RNP to Multiplex. This is further made clear in its written Opening Submissions by Mr Nissen. Given the nature of the claim for loss and damage, the duty which is alleged to have been owed must be one to prevent Multiplex from suffering economic loss as a result of the underperformance or failure of the slipform rig. 73. Multiplex also brings the alternative claim against RNP for negligent misstatement which I have already explained, set out in paragraph 44 of its Amended Particulars of Claim. This is on the grounds that the Category 3 check certificates issued by RNP to Dunne contained certain statements which were intended to be relied upon by Multiplex, in that RNP knew or ought to have known that they would be so relied upon. This claim is also based on an alleged assumption of responsibility by RNP to Multiplex in the making of such statements and/or warranties. 74. It is therefore an integral part of Multiplex’s claims, either in terms of the duty of care to prevent economic loss, or the claim in negligent misstatement, that there was an assumption of responsibility by RNP. This was also made clear in Multiplex’s written submissions, including paragraph 38 which set out the basis of the duty of care in respect of the first preliminary issue. That stated: “….the claims made by Multiplex in this case are: (1) That RNP owed a duty of care to Multiplex not to negligently misstate the truth of what it certified in the Design Check Certificates. The statements were that reasonable skill and care had been used in the preparation of the design check to ensure the calculations accorded with the design brief; current industry practice and design codes. The duty of care not to misstate the position arises out of its assumption of responsibility to Multiplex to take reasonable care in the making of its statements within the Certificates.” (emphasis added) (2) That RNP warranted (i.e., it made a contractual promise) to Multiplex that the content of the statements contained in the Design Check Certificates was true. The statements were that reasonable skill and care had been used in the preparation of the design check to ensure the calculations accorded with the design brief; current industry practice and design codes.” 75. Given there was no contract between RNP and Multiplex, the assertion that RNP made a contractual promise to Multiplex needs to be considered from first principles. I will however return to this point later in this judgment, after considering the evidence, when I consider Preliminary Issue 2. E: The Witnesses 76. Each side called one witness of fact. Both of the witnesses gave evidence helpfully and were genuine in their answers. There are no substantial disputes of fact in this case, at least not at this stage of the proceedings. 77. The first was Jonathan Bailey, who is now the Engineering Lead at Multiplex. He moved to Multiplex in 2015, although he was involved in the 100BG project before that, when he was a structural engineering consultant at Robert Bird Group (“RBG”) between 2007 and 2013. RBG was the structural engineer on the design for 100BG. He has an engineering background and was the Project Engineer when he joined Multiplex in 2015, working on the 100BG project. He was therefore closely involved in the period of works relevant to the proceedings. He was also the TWC appointed by Multiplex for 100BG. 78. His evidence dealt with the generality of the construction design and process; the history of the works (in so far as that was relevant); and the process whereby designs were approved. He described the core as “an abnormally large and complex structure”. He explained both the methodology of the design process and construction of the temporary works, and gave evidence concerning the factual chronology of the works. 79. Mr Bailey’s evidence was also that Multiplex initially intended to source and pay for a Category 3 check of BRM’s design of the slipform rig, and enter into a contract with an independent firm directly. He even obtained a fee proposal from RBG for this purpose, RBG being the structural engineer engaged on the Project at 100 BP. However, when he became aware that sourcing and paying for such a check was Dunne’s responsibility under the Sub-Contract, this matter was not taken any further and Multiplex did not proceed with this fee proposal. Had that proposal been pursued, it would have led to Multiplex contracting directly with whichever independent design checker Multiplex chose, but that is not what occurred. 80. Argo called Mr Paul Markham who had been the Technical Director of RNP until 2018. He is a Chartered Civil Engineer and Fellow of the Institution of Civil Engineers (“the ICE”). He set up RNP in 2007 with his colleague, Mr Tice; both of them had worked together before that at Interserve, and they decided to start their own practice. 81. In paragraph 8 of his witness statement Mr Markham stated that “it is not the job of the Category 3 checker to design the scheme or to make suggestions as to how the scheme could be improved. The checker only has to verify that the original designer’s drawings accord with the design brief and confirm that the scheme will be safe to use.” 82. In paragraph 11 of his witness statement Mr Markham stated the following: “RNP’s only contractual relationship was with Dunne. It never entered into any contract with Multiplex, or even had direct contact with any individual at Multiplex. Indeed, at the time of undertaking the design check, I was not even aware of who the principal contractor was at 100 Bishopsgate”. 83. Mr Markham’s statements about the contractual relationship being between RNP and Dunne, and not RNP and Multiplex, are correct. His statement concerning his subjective knowledge of Multiplex’s identity – namely, Multiplex specifically being the principal contractor, rather than simply that there was a principal contractor – is not relevant, in my judgment. He knew that there was a principal contractor; he states in paragraph 43 of his witness statement that he knew Dunne was a sub-contractor. He also knew that the Category 3 certificates were needed by the TWC; indeed, the British Standard makes it clear in paragraph 9.2.5 (set out at [69] above) what is to be done with the certificate. Indeed, Mr Markham would also have known that, absent the approval provided by the certificate, the temporary works could not take place. This is because the design would not have been approved by the relevant independent third party checker, which is required for Category 3 works. He found out in February 2016, at the time of the revised design check, that Multiplex was the identity of the main contractor. 84. The certificate issued by RNP was on RNP’s headed document that stated it was a “Design Check Certificate”. This had the RNP address and various references such as date and issue number. It identified the project as “100 Bishopsgate” and under “Title of Design Checked” it stated this was “CAT III Check of Slipform Rig”. Under “Description of Check/Calculations (eg Concept, Structural, Dimensional)” it stated: “Structural and dimensional check of slipform rig: • Top, working and hanging decks • Formwork shutters • Steel support frames for the design checker to be responsible for the check and to pick up any errors in the design. 97. Argo’s expert in respect of this item in the Joint Statement stated that before erection commences, the temporary works design should be checked for design concept; strength and structural adequacy (including foundations and lateral stability); and compliance with the design brief. The design check should be carried out by an independent competent person(s). The ability and independence of the checker should be greater where the temporary works are more complex. 98. Item 4 was “What are the possible consequences if a Category 3 design check is not carried out adequately? Would a Category 3 design checker be aware of these possible consequences when carrying out the design check?” The experts were “Generally Agreed” on this too. 99. Multiplex’s expert identified that these would be that the designer would not be informed of errors or omissions in the original design or be required to correct them, with a risk of catastrophic collapse, injury or death, serious economic loss and failure to construct the permanent works to programme and/or properly or at all. 100. Argo’s expert explained that the immediate consequence would be non-compliance with the requirements of BS 5975 and the lost opportunity to mitigate errors and omissions in the design. If errors and omissions are carried forward into the site works there is a risk of delay to the permanent works and potentially HSE improvement notices. 101. Both experts agreed that a Category 3 checker would be aware of these consequences. 102. The experts were also agreed on what documentation and information was required to perform a Category 3 design check in this case, and were also agreed that all the required documentation was provided to RNP. I would point out that these topics go more to later stages in the proceedings, given that the design check is to be carried out using the design brief as issued to the designer. This is set out in BS 5975 clauses 8.5 and 9.2.3, and the design brief was provided. In this case the design brief contained a generic loading requirement per square metre and RNP was asked to carry out its check on that basis. 103. Both the experts were also agreed that the Category 3 design checker should not be provided with the designer’s calculations when carrying out the Category 3 design check. This would undermine the independence of the check, and by clause 9.2.3 of BS 5975 the calculations are not supposed to go to the party performing the check. In this case the calculations were provided to RNP, but again, the consequences of that would also be dealt with at a later stage of the proceedings. 104. Although the experts stated that they were “generally agreed” on issues 8 and 9 in the Joint Statement, their detailed notes that accompany these points appeared to demonstrate important areas of disagreement. Issue 8 was “Who is responsible for preparing the design brief?” Multiplex’s expert added the following under this issue: “• TWC is responsible if the particular temporary works falls under them • TWS is responsible for their subcontractor’s temporary works • A TWS can prepare a design brief for review by the TWC.” 105. Argo’s expert added that the TWC was responsible for preparing the design brief or seeing that a brief is prepared, and for complex projects, the works contractor’s TWS might prepare a brief specific to a section of work which the TWC will then coordinate into the overall works. 106. One would perhaps expect a simple answer to this question, given that there only about two or three candidates at most available to be identified as being responsible for preparing the design brief. 107. For Issue 9, “What is the role of the Temporary Works Coordinator ('TWC') in respect of design checking under BS 5975?”, again this was said to be “generally agreed”. Multiplex’s expert stated that this would be “High level review only” and this was “particularly true of Cat 3 checks as the complexity is outside of the TWC’s competence” and the TWC “essentially want to simply receive the cat 3 check certificate from the independent engineer that has reviewed the works”. He also stated that the TWC “need to ensure a Cat 3 check has been carried out” and “a TWC has a large site based role, with many site duties. They don’t have the time to perform a 4-6 week category 3 check on a complex slipform like this.” 108. For his part, Argo’s expert stated that “the TWC is responsible for ensuring that the contractor's procedures for the control of temporary works are implemented on site. The TWC is not normally the designer but is responsible for ensuring that a suitable temporary works design is prepared, checked, and implemented on site in accordance with the relevant drawings and specification.” He agreed that the TWC would perform “a high-level review to see that the design information from the designer generally aligns with the design information used in the check”, and also that the TWC would “ensure any changes made by the site team are recorded and communicated back to the designer, further check carried out if necessary.” 109. The experts were agreed regarding the purpose of the Category 3 design check certificate. Multiplex’s expert stated that upon receiving one, the TWC would release hold points in construction method statements to enable the works to continue/or be loaded. He said that its “fundamental purpose [was] to confirm the temporary works has been checked for concept, adequacy, and correctness, and will perform in accordance with the design brief.” He also stated that the “certificate also gives confidence to the recipient that the design has been checked – confidence the design is safe and suitable to be put forward in practice as required by the design brief.” 110. Argo’s expert said that the TWC would “then use the design together with the supporting Check certificate to see that before erection commences, the temporary works design has been checked for: Design concept; Strength and structural adequacy; Compliance with the design brief.” 111. They were also agreed that a Category 3 design checker would be expected to know that the Category 3 design check certificate would be provided to the TWC. 112. Although the experts strayed into reliance, which obviously has legal dimensions to it, they were agreed that a Category 3 checker would be aware of the importance of the certificate. Multiplex’s expert stated that it would give confidence in the design, and would allow hold points to be released and risk assessments to be given to the CDM coordinators. He also said that the certificate would be used “for a range of wider coordination around the site, not just that piece of design” and also that the TWC “would not consider issuing permits to load without having that certificate in hand.” Argo’s expert accepted that the checker would be aware that the TWC would use the certificate in verifying a BS 5975 compliant check has been completed. 113. The further items in the Joint Statement go more to what happened in practice in this specific case, the extent to which Multiplex did, or should have, performed its own check, the consequences thereof, and the nature and meaning of caveats in the certificate. They are not therefore of relevance to the preliminary issues themselves. 114. I find that the purpose of the certificate is to confirm the temporary works have been checked for concept, adequacy, and correctness, and will perform in accordance with the design brief. The certificate will also provide confidence that the calculations used by the designer have (a) been checked, and (b) been checked by an organisation independent from the designer. A contractor with design responsibilities who has obtained such a certificate for their temporary works design – here, that contractor is Dunne – will be able to use that certificate to demonstrate that it, the designer, has complied with the British Standard. G: Preliminary Issue 1 – Duty of Care 115. This case has to be approached from consideration of first principles, and both parties have invited me to do so. Multiplex does not rely upon any established precedent that governs the imposition of a duty of care of the type contended for owed to a main contractor (or to a TWC) by a Category 3 independent checker contracted by a sub- contractor. 116. In Galliford Try Infrastructure Ltd (Formerly Morrison Construction Ltd and Morrison Construction Services Ltd) v Mott MacDonald Ltd [2008] EWHC 1570 (TCC) Akenhead J at [190(d)] summarised the applicable principles in determining whether a duty of care was owed in the construction context. He stated that “It is necessary for the party seeking to establish a duty of care to establish that the duty relates to the kind of loss which it has suffered. One must determine the scope of any duty of care”. I respectfully agree. The issue should not be approached considering whether RNP owed any duty; it should be determined by reference to whether RNP had a duty of care related to the kind of loss which Multiplex has suffered, and which it seeks to recover in these proceedings. 117. As Lord Hoffmann said at [14] in South Australia Asset Management Corp v York Montague Ltd [1996] UKHL 10, a duty of care “does not however exist in the abstract. A plaintiff who sues for breach of a duty imposed by the law (whether in contract or tort or under statute) must do more than prove that the defendant has failed to comply. He must show that the duty was owed to him and that it was a duty in respect of the kind of loss which he has suffered.” That is the approach that I therefore consider should be adopted in resolving this preliminary issue. irrelevant. Payment for information or advice is very good evidence that it is being relied upon and that the informer or adviser knows that it is. Where there is no consideration, it will be necessary to exercise greater care in distinguishing between social and professional relationships and between those which are of a contractual character and those which are not. It may often be material to consider whether the adviser is acting purely out of good nature or whether he is getting his reward in some indirect form. The service that a bank performs in giving a reference is not done simply out of a desire to assist commerce. It would discourage the customers of the bank if their deals fell through because the bank had refused to testify to their credit when it was good.” (emphasis added) 127. Ms Colter drew attention to the emphasis, when considering an assumption of responsibility, upon the absence of a contractual relationship. The principle in Hedley Byrne was in any case clarified in Henderson v Merrett Syndicates Ltd [1994] UKHL 5; [1995] 2 AC 145, where the House of Lords addressed claims made by certain underwriting members (or “Names”) at Lloyd’s against managing agents. The Names and the managing agents were at opposite ends of a contractual chain. The House of Lords held, notwithstanding this contractual chain, that the managing agents could still owe the Names a duty of care to prevent economic loss. There were two types of Names involved. So-called direct Names had contracts directly with the managing agents; indirect Names did not. Lord Goff held (at 194 in the AC reports) that the managing agents owed a duty of care to both. 128. Lord Goff (at 180) said that the principle underlying the case of Hedley Byrne “rests upon a relationship between the parties, which may be general or specific to the particular transaction, and which may or may not be contractual in nature”. However, he emphasised how unusual the particular situation in that case was. 129. Indeed, he used the example of a building project specifically to identify how a contrary finding would be more likely in such an instance (at 195), in other words, in a more usual case: “I wish however to add that I strongly suspect that the situation which arises in the present case is most unusual; and that in many cases in which a contractual chain comparable to that in the present case is constructed it may well prove to be inconsistent with an assumption of responsibility which has the effect of, so to speak, short circuiting the contractual structure so put in place by the parties. It cannot therefore be inferred from the present case that other sub-agents will be held directly liable to the agent's principal in tort. Let me take the analogy of the common case of an ordinary building contract, under which main contractors contract with the building owner for the construction of the relevant building, and the main contractor sub-contracts with sub-contractors or suppliers (often nominated by the building owner) for the performance of work or the supply of materials in accordance with standards and subject to terms established in the sub-contract. I put on one side cases in which the sub-contractor causes physical damage to property of the building owner, where the claim does not depend on an assumption of responsibility by the sub-contractor to the building owner; though the sub- contractor may be protected from liability by a contractual exemption clause authorised by the building owner. But if the sub-contracted work or materials do not in the result conform to the required standard, it will not ordinarily be open to the building owner to sue the sub-contractor or supplier direct under the Hedley Byrne principle, claiming damages from him on the basis that he has been negligent in relation to the performance of his functions. For there is generally no assumption of responsibility by the sub-contractor or supplier direct to the building owner, the parties having so structured their relationship that it is inconsistent with any such assumption of responsibility. This was the conclusion of the Court of Appeal in Simaan General Contracting Co. v Pilkington Glass Ltd. (No. 2) [1988] QB 758. As Bingham L.J. put it, at p. 781: "I do not, however, see any basis on which the defendants [the nominated suppliers] could be said to have assumed a direct responsibility for the quality of the goods to the plaintiffs [the building owners); such a responsibility is, I think, inconsistent with the structure of the contract the parties have chosen to make."” (emphasis added) 130. The Simaan v Pilkington Glass (No. 2) [1988] QB 758 case referred to concerned a supplier of glass units by a nominated supplier, which were found to be defective, and did not concern (as here) the provision of professional services, or a statement in a certificate by a professional. There are therefore some differences. That case was cited to me, and submissions made upon it. However, the differences in the supply of specific goods (through a contractual chain) on such a project, and statements in a certificate by a professional in the position of RNP, are sufficient that it is of indirect interest only, and not necessary to consider in separate detail. The claim by the building owners directly against that supplier in that case failed. 131. Lord Goff also went on in Henderson to state (at 196) that there was: “no inconsistency between the assumption of responsibility by the managing agents to the indirect Names, and that which arises under the sub-agency agreement between the managing agents and the members’ agents, whether viewed in isolation or as part of the contractual chain stretching back to and so including the indirect Names.” 132. One question in this case therefore could be seen as simply being, to use Lord Goff’s words, whether it would be inconsistent to find an assumption of responsibility by RNP, given this would have the “effect of, so to speak, short circuiting the contractual structure so put in place by the parties”. The contractual structure put in place comprises the contract formed directly by Dunne with RNP, in the context of the existence of the sub-contract between Dunne and Multiplex on the detailed JCT terms. 133. Ms Colter also relies on dicta in White v Jones [1995] UKHL 5 [1995] 2 AC 207, a solicitors’ negligence case. In that case, the House of Lords considered a claim arising out of instructions to change a father’s will, following a family reconciliation, to include legacies in favour of his two daughters, who had previously been disinherited after a quarrel. The reconciliation meant that the father decided the daughters would inherit after all. Those instructions were not, however, implemented by the defendants and the testator died. The appeal by the defendants to the House of Lords, after the Court of Appeal had held they owed the plaintiff daughters a duty of care, was dismissed. Lord Mustill dissented but in doing so, he explained that there were certain situations where the contractual arrangements were “so strong, so complex” that this would exclude the recognition of tortious duties between parties that were not contractually linked. He stated (at 279): “If one asks how the solicitor came to be involved in the case the answer is that by accepting the retainer he promised to draw the will with care and diligence. It is therefore proper to enquire whether this source of involvement, and this alone, should create whatever remedies may be given to the plaintiffs for his failure to do what he said. I do not here refer to the argument, forcefully addressed by Professor Jolowicz Q.C., to the effect that so far from the existence of a contract between the testator and the solicitor supporting a tortious cause of action in the plaintiffs, it operates to exclude it. This posits that contractual and tortious responsibilities occupy exclusive domains, and that where the complaint is of a failure to do a promised job of work the law of delict must necessarily be the wrong domain. The argument was advanced before your Lordships gave judgment in Henderson v Merrett Syndicates Ltd. [1994] 3 W.L.R. 761, and in the light of the conclusions there expressed cannot I think be any longer sustained. This is certainly not to deny that where the act or omission complained of occurs between persons who have deliberately involved themselves in a network of commercial or professional contractual relations, such for example as may exist between the numerous parties involved in contracts for large building or engineering works, the contractual framework may be so strong, so complex and so detailed as to exclude the recognition of delictual duties between parties who are not already connected by contractual links: see for example Pacific Associates Inc. v Baxter [1990] 1 Q.B. 993, This aspect of the law is far from being fully developed and I need not explore it here. Whatever rationalisation is preferred as a means of justifying tortious liability for a failure to act causing pure financial loss - whether a voluntary assumption of an obligation, or the existence of a special situation, or the simple filling of an unacceptable gap - there may be situations where the parties have erected a structure which leaves no room for any obligations other than those which they have expressly chosen to create. On this view the express and implied terms of the various contracts amount between them to an exhaustive codification of the parties' mutual duties. This particular problem does not arise here, for there is no consciously created framework of contractual relationships between the three parties principally concerned. There was only one contract.” (emphasis added) It is obvious that in the instant case, there was indeed a consciously created framework of contractual relationships. 134. I was also referred to Williams v Natural Life Health Foods Ltd [1998] UKHL 17, [1998] 1 WLR 830. In that case the House of Lords allowed an appeal by a director and principal shareholder of a company who had been found personally liable both at first instance, and by the Court of Appeal, to franchisees of his company. The claim against him personally (and also against the company itself, although that was later wound up) was one of assumption of responsibility under Hedley Byrne principles. In allowing the appeal, Lord Steyn stated (at 835): 138. This demonstrates that the requirement of communications “crossing the line” may not be entirely decisive, but remains important in order to place the claim in its correct perspective. Different phraseology was used in the The Nicholas H but the concept is the same. Consideration must be given to direct exchanges (if there are any) between RNP and the party seeking to establish the direct duty of care, and the nature of those exchanges. 139. Lord Steyn also considered (at 241) the issue of policy factors. He stated: “At present the system of settling cargo claims against shipowners is a relatively simple one. The claims are settled between the two sets of insurers. If the claims are not settled, they are resolved in arbitration or court proceedings. If a duty is held to exist in this case as between the classification society and cargo owners, classification societies would become potential defendants in many cases. An extra layer of insurance would become involved. The settlement process would inevitably become more complicated and expensive. Arbitration proceedings and court proceedings would often involve an additional party. And often similar issues would have to be canvassed in separate proceedings since the classification societies would not be bound by arbitration clauses in the contracts of carriage. If such a duty is recognised, there is a risk that classification societies might be unwilling from time to time to survey the very vessels which most urgently require independent examination. It will also divert men and resources from the prime function of classification societies, namely to save life and ships at sea. These factors are, by themselves, far from decisive. But in an overall assessment of the case they merit consideration.” (emphasis added) 140. It is not generally productive for first-instance judges to indulge themselves by considering policy. However, in some cases it is unavoidable. Where, as here, a novel duty of care is advanced, it is important that all the material factors, both for and against the imposition of such a duty, are considered. The above passage makes it clear that policy, and the consequences in terms of litigation and settling of claims, require consideration and that these are material factors. I return to this at [180] below. 141. Turning to more modern cases, of the numerous ones cited, I shall concentrate on only five. The reason that I have done so is to demonstrate that the law in this area moves consistently. The other cases to which I do not refer, but which were argued, restate and apply the same principles, in a variety of different factual circumstances. I have considered them all, but many of them recite the same passages from the earlier authorities in any event. 142. The first is Customs and Excise Commissioners v Barclays Bank plc [2006] UKHL 28. In that case, the House of Lords heard an appeal by the defendant bank. The Court of Appeal had overturned the decision of the first-instance judge on a preliminary issue, after he had held that the bank did not owe a duty of care to the Commissioners, who had obtained a freezing injunction against two companies for unpaid VAT. The bank had notice of the injunctions but failed to prevent payment out of the accounts in breach of the injunctions. The Court of Appeal rejected the bank’s submission that it could not be regarded as assuming responsibility to the commissioners. The House of Lords did not agree, and allowed the appeal. 143. The House of Lords held that the tests used in considering whether a defendant sued as causing pure economic loss owed a duty of care, disclosed no single common denominator by which liability could be determined, and the court would focus its attention on the detailed circumstances of the case and the particular relationship between the parties in the context of their legal and factual situation taken as a whole. 144. Lord Bingham stated the following: “[4] …..I content myself at this stage with five general observations. First, there are cases in which one party can accurately be said to have assumed responsibility for what is said or done to another, the paradigm situation being a relationship having all the indicia of contract save consideration. Hedley Byrne would, but for the express disclaimer, have been such a case. White v Jones and Henderson v Merrett, although the relationship was more remote, can be seen as analogous. Thus, like Colman J (whose methodology was commended by Paul Mitchell and Charles Mitchell, "Negligence Liability for Pure Economic Loss (2005) 121 LQR 194, 199), I think it is correct to regard an assumption of responsibility as a sufficient but not a necessary condition of liability, a first test which, if answered positively, may obviate the need for further enquiry. If answered negatively, further consideration is called for. [5] Secondly, however, it is clear that the assumption of responsibility test is to be applied objectively (Henderson v Merrett, p 181) and is not answered by consideration of what the defendant thought or intended. Thus Lord Griffiths said in Smith v Bush, p 862, that "The phrase 'assumption of responsibility' can only have any real meaning if it is understood as referring to the circumstances in which the law will deem the maker of the statement to have assumed responsibility to the person who acts upon the advice." Lord Oliver of Aylmerton, in Caparo v Dickman, p 637, thought "voluntary assumption of responsibility": "a convenient phrase but it is clear that it was not intended to be a test for the existence of the duty for, on analysis, it means no more than that the act of the defendant in making the statement or tendering the advice was voluntary and that the law attributes to it an assumption of responsibility if the statement or advice is inaccurate and is acted upon. It tells us nothing about the circumstances from which such attribution arises." In similar vein, Lord Slynn of Hadley in Phelps v Hillingdon, p 654, observed: "It is sometimes said that there has to be an assumption of responsibility by the person concerned. That phrase can be misleading in that it can suggest that the professional person must knowingly and deliberately accept responsibility. It is, however, clear that the test is an objective one: Henderson v Merrett Syndicates Ltd [1995] 2 AC 145, 181. The phrase means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by law." The problem here is, as I see it, that the further this test is removed from the actions and intentions of the actual defendant, and the more notional the assumption of responsibility becomes, the less difference there is between this test and the threefold test. [6] Thirdly, the threefold test itself provides no straightforward answer to the vexed question whether or not, in a novel situation, a party owes a duty of care. In Caparo v Dickman, p 618, Lord Bridge, having set out the ingredients of the three-fold test, acknowledged as much: "But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels to attach to the features of different specific situations which, on a detailed examination of all the circumstances, the law recognises pragmatically as giving rise to a duty of care of a given scope. Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes." Lord Roskill made the same point in the same case at p 628: "I agree with your Lordships that it has now to be accepted that there is no simple formula or touchstone to which recourse can be had in order to provide in every case a ready answer to the questions whether, given certain facts, the law will or will not impose liability for negligence or in cases where such liability can be shown to exist, determine the extent of that liability. Phrases such as 'foreseeability', 'proximity', 'neighbourhood', 'just and reasonable', 'fairness', 'voluntary acceptance of risk', or 'voluntary assumption of responsibility' will be found used from time to time in the different cases. But, as your Lordships have said, such phrases are not precise definitions. At best they are but labels or phrases descriptive of the very different factual situations which can exist in particular cases and which must be carefully examined in each case before it can be pragmatically determined whether a duty of care exists and, if so, what is the scope and extent of that duty. If this conclusion involves a return to the traditional categorisation of cases as pointing to the existence and scope of any duty of care, as my noble and learned friend Lord Bridge of Harwich suggests, I think this is infinitely preferable to recourse to somewhat wide generalisations which leave their practical application matters of difficulty and uncertainty." [7] Fourthly, I incline to agree with the view expressed by the Messrs Mitchell in their article cited above, p 199, that the incremental test is of little value as a test in itself, and is only helpful when used in combination with a test or principle which identifies the legally significant features of a situation. The closer the facts of the case in issue to those of a case in which a duty of care has been held to exist, the readier a court will be, on the approach of Brennan J adopted in Caparo v Dickman, to find that there has been an assumption of responsibility or that the proximity and policy conditions of the threefold test are satisfied. The converse is also true. [8] Fifthly, it seems to me that the outcomes (or majority outcomes) of the leading cases cited above are in every or almost every instance sensible and just, irrespective of the test applied to achieve that outcome. This is not to disparage the value of and lengthy citation of previous authority should be avoided. However, in my judgment it is helpful to set these out in more detail than I would otherwise to make clear the analysis in terms of this aspect of the case, as the different arguments and advantages of two different approaches are weighed up: “[36]…..That argument was that it is inappropriate to permit the Fund to invoke the law of tort in order to sue UBK direct for negligent valuation advice, when the parties (i.e. the Fund, RBE and UBK) had structured their contractual relationship so that UBK's duty in respect of that advice was not owed to the Fund, but to RBE, who in turn owed a similar duty to the Fund. [37] There is, at any rate at first sight, attraction in the notion that, where, in a purely commercial context, parties have voluntarily and consciously arranged their affairs so that there is a contractual obligation on A to give advice to B, and on B to consider and pass on that advice, to the extent that it sees fit, to C, there should normally be no part for the law of tort to play. In other words, that i) There should be no tortious duty in relation to the advice, either as between A and B or as between B and C, because those parties have identified the extent and ambit of the respective rights and duties between them in their respective contracts; and ii) There should be no tortious duty in relation to the advice given by A, as between A and C, because the three parties have intentionally structured their relationships so that there is no direct duty between A and C, but separate duties between A and B, and between B and C. [38] The justifications for each of these two points might appear to be the converse of each other. Point (i) is based on the contention that the raising of a tortious duty is inappropriate because the parties have agreed a contractual duty. Point (ii) is based on the contention that the raising of a tortious duty is inappropriate because the parties have decided that there should be no contractual duty. However, as I see it, despite this apparent paradox, both points essentially rest on the same proposition, namely that a tortious duty should not be invoked between parties to commercial contracts at least where there is no "liability gap". [39] In relation to point (i), it would be surprising (save perhaps in unusual circumstances) if the law of tort imposed greater liability on A or B than they had agreed to accept, either expressly or impliedly, in their respective contracts, and it might appear pointless and confusing if there was a tortious liability which was simply co-extensive with the contractual liability. Of course, tortious liability is generally subject to less strict statutory limitation bars than contractual liability (as is demonstrated in the Henderson case at 174F to G), but that may seem a questionable reason, in terms of principle, for justifying a co-extensive tortious duty where there is a contractual duty. [40] So far as point (ii) is concerned, it may be thought to be questionable whether the law of tort should normally be capable of being invoked in order to found a duty of care in circumstances where the parties have intentionally set up a contractual structure which avoids such a contractual duty. Especially so when there is no "gap" which requires "filling"; in this case C, the Fund, could have sued B, RBE, who could in turn have sued A, UBK. The only reason that that course cannot now be taken is that, for commercial reasons, Riyad Bank was not prepared to sue (or let the Fund sue) RBE, and it is now too late for it to do so, because of a limitation bar. [41] Some apparent support for the view that a tortious duty of care normally has no part to play in the context of a commercial contractual relationship may be found in observations of the Privy Council in a judgment given by Lord Scarman in Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd [1986] AC 80 at 107, quoted by Lord Goff of Chieveley in the Henderson case at 186C to F. Further, in the Williams case at 837F, Lord Steyn said that, at least in the current state of English contract law, "the law of tort, as the general law, has to fill an essential gap-filling role". [42] On the other hand, there are strong countervailing arguments the other way, which appear to me, again, to apply equally to points (i) and (ii). If a duty of care would otherwise exist in tort, as part of the general law, it is not immediately easy to see why the mere fact that the adviser and the claimant have entered into a contract, or a series of contracts, should of itself be enough to dispense with that duty. If a claimant is better off relying on a tortious duty, it is not readily apparent why a claimant who receives gratuitous advice should be better off than a claimant who pays for the advice (and therefore would normally have the benefit of a contractual duty), unless, of course, the contract so provides. One might expect the question to be determined by reference to the contractual relationship on the normal basis, namely whether the nature terms and circumstances of the contract(s) expressly or impliedly lead to the conclusion that the parties have agreed that there will be no tortious duty. [43] These arguments have to be assessed in the light of the decision of the House of Lords and, in particular the analysis of Lord Goff, in the Henderson case. It seems clear from the closely reasoned passage in his speech at 184B to 194E that the issue has been resolved, at least in principle, in favour of the latter of the two views that I have summarised. In other words, "the common law is not antipathetic to concurrent liability". At 186C to F, Lord Goff considered and explained Lord Scarman's observation in the Tai Hing case. He went on to say that a claimant who is owed a contractual duty of care may also (or alternatively) be entitled to invoke a tortious duty of care, unless it would be "so inconsistent with the applicable contract that, in accordance with ordinary principle, the parties must be taken to have agreed that the tortious remedy is to be limited or excluded" – see at 193H and 194A to B. [44] Those observations are clearly appropriate to what I have called point (i), but, while it is not immediately clear that they apply to point (ii), in my view they do. As mentioned above, the principle upon which both points (i) and (ii) rest is essentially this, that the law of tort should not be invoked in a commercial context, at least where there are no gaps, where the parties have contractually provided for a duty, or a chain of duties. More importantly, Lord Goff's reasoning in relation to point (ii) appears to embody the same approach as that he applied to point (i). [45] At 193B to C, Lord Goff said "the law of tort is the general law out of which the parties can, if they wish, contract", and that the correct approach is to determine whether there would otherwise be a tortious liability arising out of an assumption of responsibility and concomitant reliance, and "then to inquire whether or not that liability is excluded by the contract because the latter is inconsistent with it". That is essentially the approach he adopted when he turned to consider the contention that "the indirect Names and the managing agents, as parties to the chain of contracts…must be taken to have thereby structured their relationship so as to exclude any duty of care owed directly by the managing agents to the indirect Names in tort" – 195A to B. He then said that he saw "no reason in principle" why an adviser could not owe, at the same time, a contractual duty of care to the next person in the chain and a tortious duty of care to another person further along the chain. He went on, in a passage more fully quoted by Longmore LJ, to observe at 195G that "in many cases in which a contractual chain comparable to that in the present case is constructed it may well prove to be inconsistent with an assumption of responsibility which has the effect of…short-circuiting the contractual structure put in place by the parties". [46] So far as "gap-filling" is concerned, Lord Steyn's observation in the Williams case cannot mean that a tortious duty can only arise where there is a "liability gap": that would be inconsistent with the whole basis of the reasoning and decision in the Henderson case. Lord Steyn's point in this connection was, I think, that there are cases involving contractual duties, where, if the law of tort cannot be invoked, as a matter of policy, there would be a "liability gap" which would be unacceptable (as in Smith v Eric S Bush [1990] 1 AC 831 and White v Jones [1995] 2 AC 207). That aspect of the law of tort has no bearing on the present case: the fact that the law of tort can be invoked where there is a "liability gap" in certain exceptional cases does not mean that it can never be invoked in a case where there is no "liability gap". [47] Thus, the question in a point (ii) case, as in a point (i) case, is whether, in relation to the advice he gave, the adviser assumed responsibility to the claimant, in the light of the contractual context, as well as all the other circumstances, in which the advice was given. The way in which Lord Goff expressed himself in more than one place in his speech in the Henderson case, including some of the brief passages I have quoted, suggests that it is for the adviser to establish that the contractual context negatives an assumption of responsibility, not for the claimant to show that the assumption survives notwithstanding that context. [48] Like Longmore LJ, I do not think that the answer can depend on whether one asks first whether, absent the contractual context, there would be an assumption of responsibility, and secondly whether the positive answer to that question is vitiated by the contractual context; or whether one asks the single question whether, in all the circumstances, including the contractual context, there was an assumption of responsibility. Whether or not one adopts the two-stage approach may depend on the facts of the particular case, or even on the way the case has been argued. [49] In the present case, there were a number of factors which together satisfy me that Moore-Bick J was quite right to conclude that UBK assumed responsibility to the Fund in relation to the advice and other assessments it agreed to provide under the TSA, notwithstanding the contractual structure the parties adopted.” 151. He then identified the factors which he considered justified that finding. There were nine of them, including that the bank held itself out as experienced and expert in a specialised field (at [49](i)) and also that there was a “logical conceptual or commercial conflict between either or both of the contractual duties owed” by the bank to the claimants, the claimants to the fund, and the tortious duty said to be owed by the bank to the fund. 152. It is therefore plain that a “gap” is not essential, but whether there is a gap or not is a relevant consideration. Here, as I have explained at [58] above, in this case there is no gap. 153. The next two cases are both first-instance, the first arising in the construction field. I shall deal with them in chronological order. In Galliford Try Infrastructure Ltd (Formerly Morrison Construction Ltd and Morrison Construction Services Ltd) v Mott MacDonald Ltd [2008] EWHC 1570 (TCC) Akenhead J considered similar engaged KPMG to provide advice on the “implementation of a due diligence strategy to address the threat posed by HM Customs & Excise (HMCE) and its approach to companies dealing in the mobile phone industry”. That is taken from the engagement letter set out at [9] in the judgment. 157. In considering KPMG’s application to strike out the claim on the grounds that it disclosed no reasonable cause of action, the judge considered whether KPMG owed Arrowhead a duty of care. The judgment considers this between [41] to [60], considering both the assumption of responsibility test and the three-part test, and the judge concluded that no duty of care arose under either. At [41] to [47] the judge considered the cases, in particular Customs and Excise v Barclays and Williams v Natural Life Foods. He explained at [49] that KPMG assumed responsibility to Dragon for the proper performance of its services, on the terms of its engagement letter including the limitations contained with that. He went on to find: “[50] In such circumstances it is inconceivable, in my judgment, that any reasonable businessman would have considered that KPMG was voluntarily assuming an unlimited responsibility towards potential investors in Dragon. This would apply to direct investors, but applies with even greater force to an investor such as Arrowhead which was investing at several removes. If the question had been raised in some notional conversation between Arrowhead and KPMG, it is obvious that KPMG would not have been prepared to accept such an unlimited responsibility. This is underlined by Mr. Simmonite's reference in his e-mail dated 9 December 2003 (see [14] above) to the "high risk nature of the business", as a result of which it would be unusual for a bank to be willing to treat VAT repayments as an asset for the purpose of lending. While this was not a communication to Arrowhead, the information which it contains must have been obvious to Arrowhead whose role was to provide finance which was not obtainable from more readily available sources, and is therefore part of the relevant background against which the parties' conduct is to be assessed. Similarly, while Arrowhead probably did not know of the particular express exclusion in KPMG's general terms of business of any third party rights, this was not an unusual term and was the sort of term which a reasonable businessman would expect to find there. [51] Although KPMG knew that its involvement was being described to potential investors by Dragon, there is objectively no reason to suppose that it was prepared to accept any responsibility other than its responsibility to Dragon in accordance with the terms of its engagement letter, let alone responsibility to a whole chain of investors such as was put in place in this case. KPMG in my judgment did not assume responsibility to Arrowhead, but (in Lord Hoffmann's terms) was only discharging its duty to Dragon. Far from the relationship between Arrowhead and KPMG having all the indicia of contract save for consideration, there was no direct contact between them until a relatively late stage and one of the obvious and important indicia of a contractual relationship in such a context, namely an engagement letter defining KPMG's services and the extent of its liability, was missing. [52] Accordingly, to hold that there was a voluntary assumption of responsibility by KPMG towards Arrowhead would fly in the face of the reasonable expectations of businessmen. The only reasonable inference from the parties' conduct against the background of all the circumstances of the case is that no such responsibility was assumed.” (emphasis added) 158. He then turned to the three-fold test. Having considered the cases relied upon by Arrowhead, he concluded: “[59] I would accept that in some contexts the defendant's knowledge of and consent to the fact that his advice is being passed on by his client to a third party, who will rely on it for the purpose of making an investment (using that word in a broad sense), may be sufficient to enable the third party to demonstrate sufficient foreseeability and proximity, and that the context may also show that it is fair, just and reasonable in such circumstances to impose a duty of care owed by the defendant to the third party. That is generally more likely to be the case when the third party claimant is a consumer and the context is an ordinary transaction such as the purchase of a house (as in Smith v. Bush) than in a carefully structured business context such as the present case, where the claimant was a sophisticated investor dealing with the known risk of not recovering VAT repayments as a result of the "HMCE threat". As the cases make clear, in determining what is fair, just and reasonable, context is all important. [59] I would be prepared to assume for present purposes that Arrowhead is able to satisfy the requirements of foreseeability and (though with some hesitation) proximity. Even so, however, in my judgment it would not be fair, just and reasonable to impose a duty of care on KPMG. This is for essentially the same reason that I have concluded that the case based on assumption of responsibility must fail. That is to say, it would not be fair, just and reasonable to impose a duty of care on KPMG which could result in unlimited liability (or at any rate, liability up to the full amount of the loans to be advanced by Arrowhead, together with a high rate of interest on such loans) when it would have been obvious to all concerned, first that KPMG's relationship with its client, Dragon, was governed by an engagement letter which was likely to contain limitations on the extent of KPMG's liability and very possibly an exclusion of liability to third parties, second that the business in which Dragon proposed to engage was a high risk business, and third that KPMG would not have been prepared to accept such a responsibility to Arrowhead if it had been asked to do so.” (emphasis added) 159. I agree with the approach of the judge in that case. I accept, as he did, that in some contexts the defendant's knowledge of and consent to the fact that his advice is being passed on by his client to a third party, who will rely on it for a specific purpose, may be sufficient to enable the third party (here, Multiplex) to demonstrate sufficient foreseeability and proximity, and that the context may also show that it is fair, just and reasonable in such circumstances to impose a duty of care owed by the defendant to that third party. That is generally more likely to be the case when the third party claimant is a consumer and the context is an ordinary transaction. It is not likely to be the case where the third party is a main contractor, with detailed contractual provisions governing all of its relationship with others (such as the employer, sub- contractors, its own professionals if it has engaged any) that do not include the defendant. 160. The fifth case is Burgess v Lejonvarn [2017] EWCA Civ 254; [2017] PNLR 25, where Hamblen LJ (as he then was) upheld the decision of the Deputy High Court Judge on preliminary issues that held there was a duty of care, on the assumption of responsibility basis, owed by a professional garden designer to neighbours and social friends, for whom she had performed gratuitous services. Hamblen LJ listed at [72] all of the different features of that case that had led the judge to conclude that there was an assumption of responsibility. There were 10 of them, and they were all very fact specific. Although the judge had found that there was no contract between the parties, and therefore that there was no obligation upon Mrs Lejonvarn to undertake any services, those that she had undertaken had to be performed with reasonable care and skill. 161. Two important parts of the judgment for the purposes of the instant case are the following. At [75], Hamblen LJ stated: “the fact that the judge found that there was no contract does not mean that the parties' relationship could not be akin to a contractual one. The judge found at [182] that it was so akin, observing that the services "were all provided in a professional context and on a professional footing" and that the services were "freely accepted by the Burgesses. The Burgesses were her clients (albeit not in a contractual sense) and they owned the land in respect of which the services were performed.” The reason this is important is as follows. That case involved a very close relationship that was not contractual. It could (given slightly different circumstances) have been contractual, but was not. It was akin to a contractual relationship. 162. The second part is at [89] where Hamblen LJ stated that “a duty expressed in these terms does not trespass on the realm of contract”. This shows the careful and justified reluctance of the courts to allow the law of tort to be used by claimants to “trespass” on contracts entered into freely by the parties. 163. These two passages also make it clear that the particular features of that case are highly unusual. There was a professional relationship between the parties, albeit one that was not governed by a contract. That is a rather different scenario to the instant case, where there was an express contractual relationship to which RNP was a party, but it was one which RNP consciously and deliberately entered into with Dunne, and not with Multiplex. The decision in Burgess is most fact specific2. I find the case wholly distinguishable. 164. These five cases demonstrate that, often, the result will be the same whether one adopts the assumption of responsibility test, or the three-fold test. They also demonstrate that, in some unusual factual situations (such as Riyad Bank, or Burgess) it may be the unique facts themselves – the context within which the duty has to be considered – that lead to the imposition of the duty of care. Although the existence of a contract is not entirely determinative, it is a highly relevant feature. In my judgment, the closer the situation under scrutiny is to a more conventional or habitual business- like relationship governed by contractual terms agreed by the parties, the less likely the law will be to answer the questions concerning assumption of responsibility and fairness, justness and reasonableness, in favour of a claimant such as Multiplex who has no contractual relationship with RNP. 165. Turning to reliance, in Hunt v Optima (Cambridge Ltd) [2014] EWCA Civ 714 the Court of Appeal upheld an appeal from findings at first instance that purchasers of newly constructed apartments could sue on architects’ certificates on the basis of negligent misrepresentation, even though the certificates had not been received by the purchasers until after contracts for sale of the apartments to them had been exchanged. (10) No services were provided directly to Multiplex by RNP. (11) This construction project, in common with very many (if not most), had a large number of participants and a detailed and careful contractual structure between the employer and Multiplex (on the terms of the main contract) and Multiplex and Dunne (on the terms of the sub-contract). The relationship between Dunne and RNP sat entirely separate from that contractual matrix. To find that there was an assumption of responsibility on the part of RNP direct to Multiplex would indeed “short circuit the contractual relations” in the way identified by Lord Goff in Henderson v Merrett set out at [132] above. (12) It would also be inconsistent with the contractual structure to make such a finding in Multiplex’s favour, a point made in the quotation from Lord Goff in Henderson set out at [131] above. A different way of expressing this would be to use the words of Lord Mustill in White v Jones at [133] above, where he said the parties could deliberately involve themselves in contractual relations that were “so strong” as to exclude the imposition of a duty of care. (13) Multiplex as the main contractor would have a large number of other contractual obligations, not only to the employer, but potentially to other sub- contractors on all the other elements of the project. RNP did not know the full extent of any of these obligations, and had no way of finding out on the basis of the very limited material that was provided to RNP to perform the check. Indeed, RNP did not know anything at all about these other obligations on the part of Multiplex. (14) RNP did not assume responsibility for the accuracy of the information in the certificates to Multiplex, but rather had contractual responsibility to Dunne for that. Nor did RNP assume responsibility for the accuracy of the information in the certificates for use by Multiplex for the purpose of allowing the temporary works to commence by issuing the permit to load, rather than for the purpose of allowing Dunne to comply with its own design responsibility under the sub-contract between Dunne and Multiplex by producing a design that complied with the British Standard, the CDM Regulations and the Statutory Requirements. The mere fact that RNP knew that the TWC would (or should) be provided with the certificate is not sufficient. Thus the “critical” question posed by Lord Hoffmann in Customs & Excise v Barclays Bank set out at [146] above is answered in favour of RNP (and therefore Argo). (15) Returning to Lord Hoffmann’s speech in that case (which I set out at [145]) and his analysis of situations involving A, B and C, I find the following. Here, A (RNP) was contracted by B (Dunne) to provide B with a certificate checking certain features of B’s design of part of the temporary works (whether prepared directly and solely by B, or by another entity Z – also directly contracted by B - does not for these purposes matter). B also had a contract direct with C (Multiplex) to provide a far wider design and scope of works, of which the temporary works formed but one part. A knew that the certificate was to be (or should have been) provided by B to C, to form part of the material necessary for C to conclude that B’s temporary works design was complete, and thereafter C would provide permission to B for the temporary works to commence. C was not involved in providing any information to A, nor was C involved in what B chose to provide to A for the purpose of the check. A did not know the extent of C’s wider obligations to the employer, or to other sub-contractors. Therefore, in providing the certificate, A did not assume responsibility to C for the accuracy of the information in the certificate, and was only discharging its duty to B when it produced the certificate. 173. I have also considered these conclusions against Lord Bingham’s five observations in Customs and Excise Commissioners v Barclays Bank plc. These are set out at [144] above. Firstly, this is not a situation where the parties have a relationship with all the indicia of a contract, save consideration. The relationship between “the parties” (that term applying to RNP and Multiplex) does not have the indicia of a contract. This is a situation where the parties do indeed have an actual contract; however, neither of those parties is Multiplex, as the contract is between RNP and Dunne. Secondly, application of the objective test does not assist Multiplex. Objectively, construction professionals would expect the framework of carefully organised contractual obligations to govern their legal relations with one another. Thirdly, this is a novel situation and the three-fold test is accepted by Lord Bingham as providing no straightforward answer. Proximity and fairness are merely convenient labels to attach to the different circumstances which require detailed examination. Matters of wide generalisation do not greatly assist. Even if the three-fold test is adopted, and considering each and every one of the convenient labels, it would not be just, reasonable, or fair to impose a duty of care of the type contended for by Multiplex upon RNP. Fourthly, the incremental test does not provide any assistance to Multiplex, and to be fair to Mr Nissen, he does not rely upon it. Fifthly, the outcome that I have identified is sensible and just. It also results in a situation where RNP is not held liable, for a potentially unlimited liability (in this case said by Multiplex to be restricted to the level of its insurance cover, but only as a result of RNP’s liquidation) on a major and very complex construction project, the details of which were never provided to RNP at all. All RNP was ever provided with (by Dunne) was a very limited set of design information so that it could check the calculations. 174. Expanding further upon why it would not be just, reasonable or fair to impose a duty of care upon RNP of the type contended for by Multiplex, the following point should be borne in mind. Multiplex chose to contract with Dunne on highly detailed terms. Parties choose with whom they contract, and they also choose whether they require those parties to have any insurance for their design obligations. Multiplex has a cause of action against Dunne, a company that is still in legal existence (albeit one which is in administration). Denial of a duty of care does not mean Multiplex is left without any remedy. Although enforceability of that remedy against Dunne may be a different matter, the law does not determine matters such as justness, and fairness, based on the financial durability of a sub-contractor such as Dunne. 175. I am reinforced in my conclusions above that RNP did not (on an objective test) assume responsibility to Multiplex, by considering the very modest level of the fee. Of course, that is not a determinative factor; in many of the cases, no fee at all was charged (such as the Burgess v Lejonvarn case, or in Hedley Byrne itself). However, it is part of the factual circumstances in this case. Further, this is an entirely conventional engagement by a sub-contractor of a design checker to carry out one specific task, namely the Category 3 check of the slipform rig, required by the British Standard in order that the sub-contractor, with full design obligations to the main contractor, could produce a design of the temporary works (of which the slipform rig formed a part) which complied with the CDM Regulations and which the main contractor would then permit to commence. This is not a factually unusual, or less conventional case in the same way that, for example, some of the cases such as Burgess v Lejonvarn, Hedley Byrne itself, or Riyad Bank v Ahli United Bank could be described. Those were rather more unusual situations. The instant case with RNP, Dunne and Multiplex is not unusual, and is an entirely conventional arrangement in a major project such as this. Construction projects often involve a great many parties, and the careful arrangement of obligations between them all, one with another, are contained in highly complicated contractual provisions. Some of those parties are central players in the project, such as the main contractor and sub-contractor. Some are players with lesser roles. I would characterise RNP’s role in the latter category. 176. Where this case does, perhaps, fall out of the norm is the sequence of events following production of the certificates themselves by RNP. One would hope that it would be unusual that sub-contractors such as Dunne remove or delete parts of such certificates, before providing them to the main contractor to obtain permission to commence the temporary works. However, that unusual feature does not form part of my analysis of a duty of care above, which has been performed on the basis of the certificates as produced and provided to Dunne. I accept that there are factually specific issues that occurred after 25 January 2016 that would, if the answers to the preliminary issues were different, require careful resolution at a subsequent trial. 177. In parallel with the conclusions reached in the Arrowhead case, RNP knew that a Category 3 check was required by Dunne, and included in the British Standard, for certain types of design, and that it was important that this check was independent (indeed, this is the definition of Category 3). Further, to adopt the wording of the judge in that case, it is inconceivable that a reasonable businessman (as it is an objective test) would have considered that RNP was voluntarily assuming an unlimited responsibility towards the main contractor on a highly complex construction project, or to any other party involved in that project other than the one with whom RNP was in direct contract, namely Dunne. If the question had been raised in some notional conversation between RNP and Multiplex, it is obvious that RNP would not have been prepared to accept such an unlimited responsibility. 178. The same considerations apply in respect of the three-fold test. 179. Continuing the parallel from the Arrowhead case in [59] of that judgment (set out at [158] above), I accept that RNP knew that the certificates were intended to be forwarded to the TWC as part of the material required for approval of the temporary works. This much is clear from the British Standard. However, that is not sufficient to justify the imposition of a duty of care. I do not consider that, for the three-part test, Multiplex satisfies the proximity test in any event. On a major construction project such as this, with a careful and interlinked series of different contracts between main contractor, sub-contractor and consultants (and also potentially sub-sub-contractors too), in my judgment RNP was not sufficiently proximate to the main contractor (or to the TWC, if a distinction is to be made between them). However, even if I am wrong about that, and if Multiplex were to be considered sufficiently proximate, I have found that it would not be fair, just and reasonable to impose a duty of care on RNP which could result in unlimited liability to Multiplex when it would have been obvious, to all concerned, that RNP chose to contract only with Dunne. It would also have been similarly obvious that RNP’s contractual relationship with Dunne may contain limitations on the extent of RNP’s liability, and potentially an exclusion of liability to third parties. It would also be obvious that a Category 3 check, which is essentially a desk-top exercise performed on a limited range of documents sent to the checker, is itself a limited exercise in terms of assessing the validity of the contractual relationship for the statements in the certificates to constitute warranties given by RNP to Multiplex. 190. Mr Nissen approached these elements in the following way. He submitted that Dunne made an offer, on Multiplex’s behalf, for RNP to enter into a contract with Multiplex, and that this offer by Dunne was done with Multiplex’s authority. He submitted that RNP accepted this offer when it agreed to perform the Category 3 check at Dunne’s request. He submitted that there was an intention on the part of both Multiplex and RNP to enter into direct contractual relations between them, and that there was consideration provided by Multiplex for this. This consideration was payment by Multiplex to Dunne of the sums paid for the temporary works design (as that design required a Category 3 check). 191. I am unable to accept that analysis. There is no evidence of any authority being provided by Multiplex to Dunne, the sub-contractor, for Dunne to enter into any contract on Multiplex’s behalf. Indeed, the structure of the sub-contract between Multiplex and Dunne is contrary to any such authority having been provided to Dunne to do so. Mr Bailey’s own witness statement contains evidence that Multiplex contemplated entering into a contract directly with a Category 3 checker, and he even went so far as obtaining a fee proposal from RBG for that purpose. However, his colleague told him that Dunne had contractual responsibility for this under the terms of the Sub-Contract. He therefore proceeded no further. This evidence is inconsistent with an analysis of Dunne contracting with RNP on behalf of Multiplex, and is also inconsistent with any authority having been provided to Dunne to do so. 192. Under the terms of the sub-contract between Dunne and Multiplex, Dunne assumed full design responsibility to Multiplex in respect of the slipform rig, including warranting and undertaking that it would exercise “all the reasonable skill, care, and diligence to be expected of a properly qualified and competent architect or other appropriate designer experienced in designing work of a similar size, scope, nature and complexity” (this is an extract from clause 2.13.1 of the JCT form). Dunne also contracted with Multiplex to ensure that all “temporary works and structural work method statements and temporary works design submissions should as a minimum receive a complete and independent third party check” (this is from paragraph 21.16.18; Part 1 of the Contractor’s Requirements). Dunne, therefore, expressly contracted to take full responsibility for obtaining the checks required including the Category 3 check of the slipform rig. That is a different contractual structure to that which would pertain were Dunne to have been granted specific authorisation by Multiplex to conclude a contract between RNP and Multiplex. This is again reinforced by the fact that Multiplex advanced a case against Dunne in these proceedings in contract for precisely the failures in the Category 3 check in respect of which it also pursues RNP. Nor is there any scope for any finding that Dunne had implied authority as a function of being Multiplex’s sub-contractor, and indeed the JCT terms of that contract would not permit of such an implication in any event. 193. The analysis provided by Mr Nissen would conventionally be categorised as Dunne acting as an agent for Multiplex as an undisclosed principal. There is nothing in the evidence in this case to justify this, and it would be contrary to the structure of the sub-contract as a whole. As a single example, in clause 2.1.3 it is agreed that “The Sub-Contractor shall pass to the Contractor all approvals received by the Sub- Contractor in connection with the Statutory Requirements”. Were Multiplex’s analysis to be correct, these approvals would (in the case of RNP) not be an approval received by Dunne, but would be an approval provided to Multiplex pursuant, not to the sub-contract, but to the contract said to have been created between Multiplex and RNP. The words “approval received by the Sub-Contractor” make little sense if Dunne had contracted with RNP on Multiplex’s behalf. 194. More importantly, under Relevant Sub-Contract Events in clause 2.19, there is a list of matters that would entitle Dunne to an extension of time under clause 2.18. One of these is clause 2.19.8, which is “any impediment, prevention or default” by “the Contractor or any of the Contractor’s Persons”. The definitions in clause 1.1 specify Multiplex as the Contractor, and Multiplex’s “employees and agents and all other persons employed or engaged on or in connection with the Main Contract Works or any party of them…..excluding….Sub-Contractor’s persons”. If Dunne were contracting with RNP as Multiplex’s agent, Dunne would become both the Sub- Contractor and one of the Contractor’s Persons, a wholly novel and, in my judgment, untenable status. 195. Similar objections arise in respect both of acceptance by RNP of Dunne’s offer made on Multiplex’s behalf, and also any intention on the part of anyone at either RNP or Multiplex to create legal relations with one another. 196. Multiplex contended in its written submissions that “the construction industry largely operates within contractual settings”. That statement is correct; it is insufficient to assist Multiplex in this respect. In particular, where, as here, there are detailed contractual arrangements in place between different parties, with multiple contracts and multiple parties, the “contractual setting” must be considered carefully. Such a setting does not, of itself, justify imposing contractual relations where there are none. In this case, the conscious allocation of contractual responsibility by the parties specifically imposed upon Dunne the obligation of obtaining a Category 3 check, a sub-contractor to Multiplex. By Dunne having performed that obligation, the law does not impose contractual liability to Multiplex upon RNP, or clothe statements made by RNP in the certificates as warranties given directly to Multiplex. 197. Turning to consideration, in my judgment – and regardless of the other difficulties to there being any contractual relationship between RNP and Multiplex - it is stretching the boundaries of what can be, admittedly sometimes, a flexible concept to find any consideration for such a direct contract. Mr Nissen suggested the consideration comprised payment by Multiplex to Dunne for Dunne’s own sub-contract works (including design) that would somehow cover, or include as an element within it, the payment Dunne would be making, or would have made, to RNP, for RNP’s services. However, I reject that analysis. I do not consider that payments made by Multiplex to Dunne under the sub-contract, to which Dunne was contractually entitled in its own right as sub-contractor for works done, can properly be categorised as consideration for a separate contract between Multiplex and RNP. 198. In those circumstances, and the unpromising background to the existence of any intention on the part either of RNP, or indeed Multiplex, in respect of contractual purpose, it is an entirely predictable conclusion that there was no direct contract between these two parties, a view shared in the pleading of Multiplex’s case. 199. The question therefore arises, can RNP have provided any warranties direct to Multiplex in the absence of any contractual relationship between RNP and Multiplex? Warranties are statements made with a contractual purpose. Multiplex also relied upon the admission by RNP in paragraph 22(b)(ii) of its Amended Defence where it was admitted that it provided the certificates “for the purposes of the Project”. However, simply because RNP knew there was a sizeable construction project underway is not sufficient to justify a finding that the statements in the certificates were warranties provided to Multiplex. There would be a wide variety of entities involved in such a project. Design checks of this nature could, potentially, be required by a wide variety of entities on such a project, for example by a sub-contractor (as here), or a specialist sub-sub-contractor, the main contractor, or even another design consultant. Simply because RNP knew there was a project underway, and that its certificates were required for the purposes of the project, does not assist Multiplex in its case on warranties. 200. I find that RNP did not provide any such warranties in either of the two certificates. There was no contractual purpose in doing so, at least so far as Multiplex was concerned. There is nothing in the contractual arrangements between Dunne and RNP in this case that would take the case, in any way, out of the norm for conventional construction projects, namely that Dunne was the sub-contractor to Multiplex, and utilised the services of others (whether as sub-sub-contractors, designers or consultants) to perform the sub-contract works, including obtaining a Category 3 check from RNP. The scope and extent of Dunne’s contractual obligations is clearly set out in the sub-contract itself. The JCT form of sub-contract is a highly developed and complex arrangement of contractual obligations and allocation of risk, as is the main contract too. It would go entirely outside that detailed contractual framework to construe statements by RNP within the certificates, or the certificates themselves, as constituting warranties given directly by RNP to Multiplex. The fact that RNP knew the certificates were required for the design does not lead to the finding that Multiplex seeks. 201. There is nothing on the face of the certificates to constitute a warranty to Multiplex. It is difficult to see, on the facts of this case, how RNP can have given any warranty to Multiplex at all, and I find that RNP did not do so. Multiplex’s route to recovery against RNP, if there were to be such a route in law, would have been through the avenue of the first preliminary issue. I have rejected that in my answer to that issue. The second route contended for by Multiplex, that the certificates contain warranties in Multiplex’s favour given directly to it by RNP, is one that is not open to Multiplex as a matter of conventional analysis. In my judgment there is no basis for such a contention. I: Conclusions 202. I therefore find that the answers to the two preliminary issues are as follows. 203. (1) No 204. (2) No 205. At [39] above I identified that there was a difference between Multiplex and Argo as to whether “the statement” made by RNP was the certifying words within the certificate, or all of the certificate including the notes and comments. I held that the statement was the certificate as a whole. Having decided the answers to the preliminary issues on that basis, however, it is clear to me that even if the contrary were to be the case – in other words, even had I accepted Mr Nissen’s construction that “the statement” by RNP was solely the passage he extracts from it, rather than the certificate as a whole – this would make no difference to the answers to the preliminary issues. The same analysis of the requirements of a duty of care would