EXISTENCE OF A CONTRACT
There was no written or oral contract between the claimants and McBains Cooper. McBains Cooper had been introduced by Mr. Walls who worked for the defendant architects who wrote to the claimants recommending that a QS be appointed to "ensure some safeguard in the administration of the contract". Mr. Walls sent McBains Cooper's Mr. Runnicles a letter from the claimants asking him "to proceed along the lines outlined in your letter". Thereafter, McBains Cooper was named in contract as the quantity surveyors. The contract between the parties was evidenced by this letter and the parties' subsequent conduct. Since there were no express terms, the terms which claimants argued for had to be implied.
McBains Cooper's Mr. Crook accepted that he had been aware of the terms of the building contract, and was aware of the obligation on the part of the quantity surveyor to include in his interim certificate a percentage based on the value of the works 'properly executed'. Consequently, in the judge's view, the claimants would be right to assert that in order to give the contract business efficacy, it contained an implied term that McBains would act with the reasonable skill and care of quantity surveyors of ordinary competence and experience when valuing the works properly executed for the purposes of the interim certificates. This implied term arose because that was what Mr. Crook had agreed to do, and all the parties to the contract knew that it was a requirement of the building contract.
However, this was not the term which the claimants sought to imply. Their proposed term omitted the 'reasonable skill and care' qualification, thus seeking to impose an absolute obligation, the breach of which is said to be measurable by results, as if it were a guarantee. It adds a word ("only value…") for which there is no basis in the JCT contract. Most importantly, it then went on to create a positive obligation not to value work which was "obviously defective".
On the basis of the material before him, the judge could see no basis in fact or in law for the positive duty as alleged in the amended particulars of claim. It could not be said to have been expressly agreed between the parties, and there was no legal foundation for implying such a term. Contrary to Judge Stabb's conclusion in Sutcliffe, the claimants were seeking to turn the usual position on its head, to require the quantity surveyors to tell the architects about defective works (rather than the other way round), and to make the quantity surveyors liable for quality (at least to the extent that the defects were 'obviously defective') as well as quantities. Further the implied term sought would not pass the test in Liverpool City Council v Irwin,  AC 239. The term was not necessary to make the contract work, and nor was the contract was unworkable unless the quantity surveyors, whose primary obligations were concerned with valuation, were also made responsible for inspections on quality matters. Such a term could be necessary in circumstances where, as everyone agreed, the architects and second defendants were obliged to perform precisely that task
Dhamija v Sunningdale Joineries and Others,  EWHC 2396 (TCC)
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