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10 February 2011 / Jennie Gillies
Issue: 7452 / Categories: Features , Commercial
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Time to end the split?

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Jennie Gillies welcomes a decision which clarifies the relationship between contractual obligations & tortious duties

The question of whether a building contractor should, in addition to and by virtue of his contractual obligations, also be deemed to owe a co-extensive tortious duty of care to protect his client from suffering economic loss, has split official referees and Technology and Construction Court (TCC) judges for the past 15 years.

Opinion fell into two camps, with Judges Hicks QC and Seymour QC believing that a concurrent duty of care was owed (see respectively Storey v Charles Church Developments plc [1995] 73 Con LR 1 and Tesco Stores Ltd v Costain Construction Limited [2003] EWHC 1487 (TCC), [2003] All ER (D) 394 (Jul)) whereas Judges Humphrey Lloyd QC and Toulmin CMG QC considered no such duty to exist (see respectively Payne v John Setchell Ltd [2002] BLR 489, [2001] All ER (D) 203 (Mar) and Mirant Asia Pacific Limited v OAPIL [2004] EWHC 1750 (TCC)). In a welcome decision clarifying the law, a unanimous Court

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