Recent Developments in Architects' Professional Liability

Recent Developments In Architects’ Professional Liability
Introduction
1.	When looking at recent developments in Architects’ professional liability, one can see the later stages of a process of rationalisation perhaps 100 years old. The role of the Architect has not diminished in importance, but with increasing definition, some of the "aura" may have been lost . An obvious landmark in the past was Sutcliffe v Thackrah 1974 AC 727 removing "quasi-arbitral" immunity.
2.	Now see the words of Lord Hoffman in Beaufort Developments v Gilbert Ash⁰:
			"Furthermore, the Architect is the agent of the employer. He is a professional a man but can hardly be called independent. One would not readily assume that the contractor would submit himself to be bound by his decisions subject only to a challenge on the grounds of bad faith or excess of power" (my emphasis).
3.	I suggest the next stage of this process is the reversal of the decision in Pacific Associates v Baxter,¹ in disputes arising out of contracts to which the adjudication provisions of the Housing Grants Construction and Regeneration Act 1996 do not apply.
Source of Obligations
4.	The 1992 and 1999 Standard Forms of Agreement for the Appointment of an Architect ("SFA/92" and "SFA/99") are a principle source of obligations under contract. The latter attempts clearly to differentiate between design and management ; and identifies four different roles or "modes" in which an architect may act, and allows the client to select one or more of them:
		Designer
		Design Leader
		Lead Consultant during pre construction
		Lead Consultant during Work Stages
	Statutory duties may come from the Defective Premises Act 1972 or the Supply of Goods and Services Act 1982, section 13. At common law an Architect may owe a duty of care either of the Donoghue v Stevenson variety, or of the Hedley Byrnee variety. (see Tesco Stores Limited v The Norman Hitchcox Partnership Limited.²) Design professionals including Architects are unlikely to have fiduciary duties because they lack the necessary kind of personal interest in the outcome of the works: Clarke Boyce v Mouat³ cited by His Honour Judge Hicks QC in Chesham v Bucknall Austin⁴ The code of conduct issued by the Architects Registration Board contains provisions dealing with Architects who may have a personal interest. Standard 4.2 says that in a borderline case the Architect should make full disclosure of an interest and "leave it to the client to judge".
Information gathering and cost estimate
5.	The familiar rule is that negligence must be proven, and that it is not sufficient to demonstrate an error in order to show a failure to exercise reasonable care. In Copthorne Hotel (Newcastle) Limited v Arup⁵, the Court (His Honour Judge Hicks QC) was "astonished" by the difference between the original allowance made by the design professional Arup for piling costs (£425,000) and the size of the successful tender of £930,000. However the successful tender was not the lowest and the contractor may have over specified out of excess caution. The mere fact of a difference in figures did not establish negligence⁶.
6.	In Hancock v Tucker⁷ H wished to sell a hotel with the best planning permission he could obtain in the shortest time. T, an architect put forward various schemes, eventually securing conditional planning permission for a scheme which was dependent on the consent of a neighbour and the grant of an easement. Meanwhile the market fell. There was found however to be no culpable delay by T nor was his strategey one that no reasonable architect would adopt. The decision raises two points about the architect’s role at the planning stage:
		An ability to threat to, and if necessary go to appeal was a tactic essential to H’s preferred scheme . T was entitled to take account of H’s "parlous financial position" in rejecting this tactic as not sensible;
		T rejected the idea that it was part of his duty to negotiate an easement; and the Court was critical of H for failing to join in his own solicitors, who T had said should have performed the negotiations.
Design and Delegation of Design
General
7.	As to proof of negligence, the "Bolam" test was expressly applied to Architects in Nye Saunders v Alan Bristow.⁸
8.	There will be no negligence according to Nye Saunders v Alan Bristow if a "responsible body of architects" would have deemed appropriate the conduct of the architect in issue in the proceedings .
9.	In Michael Hyde v JD Williams [BLR 2001 p99] the Court of Appeal noted three qualifications to this rule - it will not apply
	a)	if, in a rare case, the views of the profession as a whole are irrational on the issue;
	b)	where the expert witnesses in the case are in fact testifying to their own practice and not general professional practice;
	c)	where the architect’s conduct under scrutiny in a given case does not in fact require any special skill
10.	As to the facts of Michael Hyde v JD Williams, a mail order company (JDW) refurbishing mills for bulk storage engaged architects ( MH) to provide " all necessary architectural services". . A British Gas direct gas fired heating system was installed and stored clothing suffered from yellowing caused by such system.
11.	Before installation of the system, the architect knew that British Gas had a disclaimer about yellowing when supplying a certain type of heating system., but accepted an (erroneous) assurance from a British Gas representative that in the case of the direct system supplied, there would be no yellowing risk. The architect simply passed this information onto JDW. Instead should the architect have followed a further train of enquiry?
12.	It was held on appeal (1) this was not a Bolam case, either because the (a) the expert evidence in this case was really about what the expert himself might have done and not what a body of architects would have done; or (b) because the decision whether further investigation of the risk of discolouration was required did not require special architectural skill ; or (c) (per Sedley LJ) because Bolam applies to conscious choices about what approach to take and not to oversights, ie omissions to act. The decision of the judge below that the architect should have made further enquiries was therefore upheld. However even had the right additional questions been asked, the yellowing effect was so obscure that there would have been no difference in the information availabe, and the Claimant failed on causation.
13.	See Sedley LJ at p112:
			"..the [architect] overlooked a risk which he ought to have brought to the Claimant’s attention and which later proved real. This involves no inquiry into competing schools of professional practice: it requires the court to decide, with whatever help the expert evidence affords, whether a competent architect could have overlooked the implications of the disclaimer."
14.	A local authority as a provider and refurbisher of housing has a legal duty to design and build with due regard to the safety of occuopiers and visitors : Rimmer v Liverpool Ciy Council [1985] QB 1. This duty gave rise to a further consideration of the Bolam test in Adams v Rhymney Valley DC 20 07 00 CA. In that case three children died in a fire in local authority housing Had the windows of the property had button locks as opposed to removable key locks they would probably have been saved. A member of the housing department staff, not a design professional as such , without any outside input had decided that that locks would be fitted with removable keys
15.	Had there been a conscious consideration of the issue, a body of reasonable opinion would actually have been in favour overall of the use of windows with removable keys . But could the local authority so rely on Bolam when in reality the use of such windows had gone by default? It was held that it could: see Sir Christopher Staughton at paragraph 42:
			The key question is whether the Bolam test still applies, although the particular defendant did not in fact have the qualifications of a professional in the relevant field of activity, and although he did not go through the process of reasoning which a qualified professional would consider before making a choice. I know of no authority that the benefit of the Bolam test should be refused in either of those cases. Nor do I think that it should be refused. To take an example which might be said to be extreme, suppose that a first year medical student were asked to deliver a baby in an emergency on an aeroplane; despite his inexperience he adopted a course which would have been approved by a respectable body of qualified opinion. Would he be liable in negligence merely because there was a safer course which he might have adopted, although a consultant obstetrician would be excused in the same circumstances under the Bolam test? That cannot be the right answer. So too in circumstances where there is no emergency I consider that a general practitioner would not be negligent if his treatment reached a standard which was approved by a responsible body of opinion in the case of a consultant. The Bolam test is not the monopoly of the expert
Novel Design
16.	As to novel design, design professionals remain subject to the ordinary standards of care even though they have embarked on a novel design using untried and untested technology. In IBA v EMI and BICC ⁹ a code of practice enabled subcontractors BICC to design a 1,250 foot aerial mast to withstand pressures caused by 80mph winds. The code applied to lattice masts where high winds were assumed to blow off accumulations of ice. However with the cylindrical mast proposed by BICC, there was a possibility that it might begin to oscillate dangerously even at low wind speeds at a time when any ice would not have fallen off. One of BICC’s masts in Yorkshire duly collapsed for this reason. Lord Edmund Davies held that the very fact that BICCS’s design was a "venture into the unknown" created a clear duty to identify and think through potential problems.¹⁰
17.	Novel design also arose as an issue in DNH v SVM. The facts are considered in detail in the context of "buildability" below, but one of the complaints of the employer in DNH v SVM was that the use of lid down trunking for electrical cables was experimental. This prompted HH J Bowsher QC to remark that if a designer adopts an experimental or unusual approach the duty on him to keep his design under review "is particularly high".¹¹
18.	Should the Architect warn the client that the design is novel? In a decision of HH J Newey QC about innovative cladding¹², the Court said the warning should be given to get the client’s approval, but does warning make any difference to Architects’ liability unless the employer’s approval is meant in some way to diminish the burden on the Architect? If the novel design fails in a wholly unexpected way not in itself capable of imposing liability on the design professional (difficult to imagine?), lack of warning might still protect the employer. In DNH v SVM. HH J Bowsher QC referred to the "warning point" but did not adopt it as a guide in that case.¹³ In London Underground v. Kenchington Ford¹⁴ LUL the employer of works had sufficient expertise to intervene in the design process of a station concourse slab for the Jubilee Line extension. However, that did not "in any way relieve" the Defendant design professionals of their contractual design obligations, or modify their duties of care.¹⁵
Safety
19.	In Eckersley v Binnie ¹⁶an accumulation of methane gas found its way from a tunnel into a pumping house on a link between the Rivers Lune and Wyre causing an explosion and the death of sixteen people. Their Personal Representatives claimed damages in negligence against inter alia the Consulting Engineers responsible for the design of the link. The Consulting Engineers argued that their pre-design investigations were sufficient in the light of contemporary knowledge and that methane was not present during construction.¹⁷ It was held even applying the standard of the ordinary competent and skilled professional¹⁸, the Consulting Engineers should reasonably have foreseen the presence of some, not necessarily a dangerous, quantity of methane and should therefore have reviewed their ventilation design in the light of experience during construction. Since 31st March 1995 Regulation 13 of the Construction (Design & Management) Regulations 1994 has required designers to ensure that there is a positive regard for the health and safety of any person at work carrying out construction work. The Regulations confer no right of action in any civil proceedings (Regulation 21), but are likely to be evidence of standards at common law. Some have argued that Regulation 13 must in practice require that every design shall be "buildable"¹⁹, although it is interesting to note that the approved code of practice published by the Health and Safety Commission relating to the 1994 Regulations states in paragraph 68 that the Regulations: (a) do not require design professionals to dictate construction methods or to exercise a health and safety management function over contractors; (b) do not require design professionals visiting site to review and report on all aspects of health and safety. A supplement to SFA/92 issued in April 1995 to deal with the 1994 Regulations simply requires Architects to inform the client of its CDM duties and to cooperate with and pass information to the Planning Supervision. Notably the client is left to ensure that consultants and specialists cooperate between themselves and with the Planning Supervisor.²⁰ SFA/99 is less forthright on client CDM obligations simply requiring the client to supply information (3.2) and comply with his obligations under the CDM regulations ( 3.7).
Codes of practice/Building Regulations
20.	Codes of practice and Building Regulations can be relevant to design liability in two ways:
	(a)	acting in conformity with them may give apparent validity to a design which is in fact novel;
	(b)	acting in breach of them may, of itself, be good evidence of negligence.
21.	As to (a) IBA v EMI and BICC also illustrates the proposition that a professional may not slavishly follow a code of practice without considering its relevance: BICC "applied a code of practice appropriate to lattice masts to a cylindrical mast without noticing that the reason for disregarding ice on thestays to a lattice mast was not appropriate to a cylindrical mast".²¹
22.	As to (b) in Turner Page v. Torres ²², the defendants designed a refurbished cinema for 2000 people. The defendants negligently failed to allow adequate means of escape in case of fire, and Building Regulation approval was refused.. The Court did not accept that "refusal of building regulation approval is a routine experience which does not reflect in any way upon the designer". An architect who departs from approved documents (again about provision of fire escapes) under the Building Act 1984 has the burden to demonstrate that his plans would be acceptable under the Building Regulations:Munkenbeck & Marshall v Regent Health and Fitness Club²³
"Buildability"
23.	In EDAC v. William Moss ²⁴ a design for curtain walling was not sufficiently robust for an exposed location. The designer, it was found, should ensure that the design can be implemented by those likely to perform it. If the work has to be performed in windy conditions partly from scaffolding and requiring exceptional skill it lacks "buildability". In DNH v. SVM ²⁵ the Claimants (DNH) were an "emanation" of the Crown responsible for the erection of the British Library which had entered directly into separate contracts with design professionals (including engineers), construction manager and works contractors. The Defendants, SVM, were mechanical and electrical consulting engineers. The Claimant sued the Defendant in contract and tort alleging professional negligence. The Defendant joined as Third Party Balfour Beatty the electrical contractors and Laing Management, management contractors. The Claimant and Third Party joined forces.
24.	The claim arose out of very extensive damage to low voltage cabling installed by BB. BB alleged that the damage was due to design faults for which they were not responsible, in particular the selection by SVM of "lid down" trunking. SVM said the defects were due to bad workmanship on the part of BB, and bad supervision and lack of co-ordination by the management contractors. DNH, with BB, argued that SVM’s duty was to be tested against the standard of a reasonable degree of skill and care of the ordinary electrician. If given that amount of care, damage was inevitable (as the sheer amount of damage could suggest), then the electrical containment system could be said to be "unbuildable" in the EDAC sense.However, it was held (by His Honour Judge Boucher QC) that the designer was entitled to look at the facts of the project and to consider what is the standard of the workmen required by the employer. The terms of BB’s contract required it to provide to DNH not a reasonable standard but a high standard of workmanship and finish. SVM was entitled to assume that its design would be executed by workmen working to such a standard and on that assumption this design was "buildable". This raises the issue of what the design professional is to do when he has no details of the quality or standards of the contractor which the employer intends to employ.
Reasonable skill/warranty of fitness
Design and Supply
25.	In IBA v. EMI Lord Scarman stated "I do not accept that the design obligation of the supplier of an article is to be equated with the obligation of a professional man in the practice of his profession"²⁶, where EMI had sought to argue that where a design required the exercise of professional skill, the obligation was no more than to exercise the care and skill of an ordinary competent member of the profession²⁷
Design only
26.	Normally there will be no grounds to impose an obligation higher than that to exercise reasonable skill and care: George Hawkins v. Chrysler ²⁸Unusually it may be possible to imply a term in fact that the design would be reasonably fit for the purpose if the common intention of the parties is that the design professional should design something fit for the purpose for which it was required: Greaves v. Baynham Meikle²⁹.
Delegation
Unsuccessful delegation by Architect
27.	In the preparation of an estimate it was prudent to consult a Quantity Surveyor but the client did not know of the existence of the Quantity Surveyor until the Schedule of Costs was sent to him under the Architect’s covering letter: Nye Saunders v. Bristow 37 BLR at p. 107.Architects informed the employer of works that they had obtained the services of a curtain walling consultant but no-one ever suggested that the architects ceased to be designers so far as the curtain walling was concerned: EDAC v. William Moss 2 Con LR at p.24.
28.	A particularly hard case of unsuccessful delegation is Richard Roberts Holdings v. DSS (1988) 46 BLR 50.:
		Defendant (architects) first designed dyeworks for Claimant in Loughborough which were later destroyed by fire. On the Loughborough project a Consultant Engineer specialising in dying equipment designed an effluent tank.
		Claimant retained Defendant to design replacement dyeworks in Hinckley. A Consultant Engineer was not retained. By this time Claimant was employing a dyehouse manager (J) and a plant engineer (B) and he informed Defendant that if Defendant required technical expertise beyond his own experience he should look to J and B. It proved impossible to line the effluent tank for the new dyehouse with steel. Defendant obtained a quotation from a supplier of a resin lining (ECC). Claimant approved acceptance of ECC’s quotation after Defendant indicated their approval and Claimant entered into a direct contract with ECC.
		Defendant did not ask for any fee in relation to the tank lining which failed shortly after installation. Claimant knew Defendant had no knowledge of linings. Claimant made its own enquiries about linings from the Wool Industries Research Association. Defendant contended it had acted "informally" and that Claimant entered into a contract with ECC directly.
		It was held that Defendant was employed to act for the Hinckley Dyeworks including designing the effluent tank, an integral part of which was the lining. "The Architects did not know about linings, but part of their expertise as architects was to be able to collect information about materials of which they lacked knowledge and/or experience and to form a view about them.... if the architects felt they could not form a reliable judgment about a lining for the tank, they should have informed [the employer] of that fact, and advised him to take other advice." (46 BLR 50, at p56)
Successful delegation by Architect
29.	The architect may succeed in delegating liability where the relevant reliance by the architect relates to a limited aspect of his design responsibility.³⁰ Architects were responsible for the design of a Local Authority swimming pool and provided for a suspended ceiling with a final coat of render (the mixture of which was confidential) applied by specialist subcontractors Pyrok Limited. The Court of Appeal held that this was not a case where the architect had "handed over to another the whole task of design" rather it was reasonable to nominate Pyrok for a specialised task. Merton v Lowe (1981) 18 BLR 130
RIBA Forms/Delegation
30.	As to SFA/92, clauses 4.1.7/4.2.5., in essence require the client to hold consultants and specialists responsible, in respect of their own work, for competence, performance and inspection; although the architect remains responsible for integrating their work into the overall design. SFA/99 clause 3.11.1 repeats this ; but clauses 3.11.2/3 require the client to ensure that specialists/consultants:
		Co-operate with the architect and provide drawings and information to him;
		When requested by the architect, consider and comment on work of the architect in relation to their own work so that the architect may consider making changes to his own work.
	Where these kinds of clauses are incorporated in the architect’s contract, if pursuant to such a clause, the client allows the appointment of a consultant on the recommendation of the architect, the architect will normally carry no legal responsibility for the work done by the expert. Even in such a case, if a danger or problem arises in connection with the work allotted to the expert which an architect of ordinary competence ought reasonably to be aware and reasonably could be expected to warn the client, it is the duty of the architect to warn the client: III v. Bedfordshire DC [1986] 1 All ER at p. 787.
Review of Design
Design only
31.	An architect has a duty in contract towards his client for whom he has designed a building to remedy defects in his design even when his duties do not extend to the administration of the construction contract if defects come to his attention before the completion of the works: Tesco Stores Limited v. NHP (1997)56 Con. LR at p.170.
Design plus contract administration
32.	The architect is under a continuing duty to check that his design will work in practice and to correct any errors which may emerge: Brickfield Properties v. Newton [1971] 1 WLR 862³¹. As to the duration of the duty it was held in EDAC v. Moss 2 Con LR at p.l24 to last until the building reaches practical completion. However, in University of Glasgow v. Whitfield 42 BLR at p. 78 . His Honour Judge Bowsher QC saw no reason why the duty should be so limited in time despite the fact that the architect’s right to require work to be done alters at the point of practical completion. When commenting on this decision in his judgment in DNH v SVM, HHJ Bowsher QC said the duty extends beyond practical completion "in some circumstances"³². The persuasive circumstance identified in University of Glasgow seems to have been that there the architect "knew or ought to have known that his design was bad from the start"³³ As noted already the duty to review is heightened in the case of unusual or experimental design³⁴.
33.	The question arises whether the duty to review a design is"deemed" so that although six years pass or more from the completion of the original design, the architect remains liable in contract for a "daily" failure to review design during construction; or actual in the sense that the "review duty" only arises when an event takes place during construction putting the architect on notice to review his design, with a breach if he fails then to spot the fault in the original design³⁵. The second approach has the appeal of logic but some support for the first approach comes from Tesco Stores v. Norman Hitchcox Partnership Limited where the Court was left in no doubt that an architect "has a continuing duty towards his client both in contract and tort to see that his design is appropriate up-to the time of completion of a building where he not only designs the building but also administers the construction contract."³⁶ SFA/99 in clause 7.2 allows the parties (as did SFA/92) to agree their own limitation period running from " the date of the last Service performed." Where the architect has provided design services only and a shortish "limitation period" has been agreed , that provision would seem to conflict with a continuing "deemed" duty to review design. The overall position now requires to be reconsidered in the light of New Islington and Hackney Housing Association v Pollard [2001] BLR at p74. The housing association ( "HA") engaged architects ("PTE") to design and supervise the construction of flats. The construction work was let under two contracts the second of which was practically complete by March 1992. In respect of inadequate soundproofing design the issue was whether a cause of action against PTE accrued to HA after 1st May 1992, proceedings having been issued on 1st May 1998. On the 1st of December 1992 HA wrote to the architects seeking the identity of the insulation product and enquiring whether the insulation complied with the building regulations PTE were engaged under the RIBA standard conditions of emgagement including stage H "Tender action to completion". Dyson J observed that these express terns do not include the duty of keeping the design under review, still less do they include the duty of reviewing the design after practical completion and the handing over of the building. As to the scope of duties which may exist up to practical completion he said , giving the example of negligent foundation design I do not accept that in every case where an architect has negligently introduced a defective design into a building, he is also by the same token in breach of a continuing contractual obligation to review his design. University of Glasgow v. Whitfield referred to above was distinguishable as in that case the architects had agreed for an additional fee to review their design after practical completion. Even if in New Islington the contractual duty to review design could survive practical completion, something must occur to put the architect on notice that he must review his design - but the letter of 1st December wasn’t sufficient to trigger that duty As to duties in tort the sound insulation was inadequate from the date of practical completion. It was never capable of being fit for the purpose. Accordingly HA’s cause of action against PTE in tort accrued at the latest at the date of practical completion which was outside the limitation period.
Review: Safety consideration
34.	Where safety is at stake there may well be a duty of "self accusation" - see the treatment of Stag Lines v. Tyne Ship Repair Group ³⁷in Chesham v Bucknall Austin - on the facts the duty to warn may be so overwhelming that it must be satisfied even though the person discharging the duty is thereby implicated.
35.	In Eckersley v. Binnie ³⁸the First Defendants’ expert accepted that the consulting engineer’s responsibility in relation to design did not end at hand-over: there was a continuing duty to warn the North West Water Authority if the consulting engineers became aware of potential danger prior to the explosion. The decision to this effect at first instance caused some concern to professional indemnity insurers, but it was substantially confirmed on appeal, although Lord Justice Bingham delivered a foreful dissenting judgment on, inter alia, the limits of the duty to review³⁹.
To whom design duties are owed
36.	In Baxall Securities v Sheard Walshaw [2001] BLR 36, the issue was whether it was fair just and reasonable that an architect should be found to owe a duty to a subsequent occupier in respect of defects that the subsequent occupier could not have discovered himself upon reasonable examination. There were no contractual relations between the architect and the subsequent tenant occupiers. To some light industrial units (in Bredbury) the architects had specified a valley gutter without any overflow system and the first of two floods was largely caused by this fault. The claimant tenants had had a reasonable opportunity of detecting this fault because they had retained surveyors to inspect the property
37.	However the roof was also underdesigned and insufficient to cope with expected rainfall in the Stockport area. The surveyors could not reasonably have been expected to have discovered this fault and as it caused a second flood, the Claimants recovered the value of damaged stock against the architects
Damages for defective design
38.	Credit must be given against rectification costs for the amount by which the cost of the building built to a hypothetically proper design would have exceeded the actual cost of the building designed by the architect and engineer: Bevan Investments v. Blackhall and Struthers (ibid.). This approach was confirmed in Turner Page Music Limited v. Torres Design ⁴⁰"If it is that the design fault resulted in the execution of work which should not have been done at all then the damages will be the cost of the work. If it is that necessary work was not specified then the only damage will be an increase in costs resulting from having the work done as an extra or under a separate contract rather than as part of the main works" (His Honour Judge Hicks QC).
39.	In James Moores v. Yakeley Associates Limited⁴¹ the Claimant claimed against the Defendant architect damages for negligence and breach of contract and also restitution of a substantial sum paid under a mistake of fact. Theagreement incorporated the RIBA Standard Form of Agreement 1992 Clause 6.1 of which, in this case, limited the Defendant’s liability to a sum not exceeding £250,000. A limitation which the parties have agreed as applicable to claims for damages for breach of contract cannot, it was held, be circumvented by formulating a claim which could be made in contract on some other basis. The Claimant was not thereforeallowed to argue that the restitutionary claim could proceed unaffected by Clause 6.1.
	More importantly, however, the Court⁴² considered whether Clauses 6.1 to 6.3 of SFA/92 satisfied the test of reasonableness in the Unfair Contract Terms Act. The Court was prepared to consider Schedule 2 to that Act⁴³. The finding was that the Defendant architect had satisfied the Court that clause 6.1 was reasonable principally as the £250,000 limit, far from being arbitrary, was a reasonable estimate of the likely construction costs - in other words there was a rational explanation for the figure. The figure in the Clause was also very much higher than the fees the architect was charging. Further, at the time the contract was made there was a recession in the construction industry and too many architects chasing too little work placing the Claimant in a strong bargaining position. The Court considered the ability of the Defendant to insure himself but in this case did not regard it as crucial. ⁴⁴
	Under SFA/99 the result is likely to have been the same, indeed the drafting of clause 7.3 in SFA/99 is superior. Perhaps with James Moores in mind, the protection of the architect is expressed to include liability in "any proceedings..whether in contract, negligence,tort or howsoever.."
Advice on Project/Form of Contract
40.	The architect must have sufficient knowledge of those principles of law relevant to his professional practice in order reasonably to protect his client from damage and loss. This may mean that in particular cases he should advise his client that he knows little or nothing of the relevant law and that the client should obtain legal advice: W Faulkner v. L Borough of Newham⁴⁵.The exercise of reasonable care and skill may require the architect to advise the employer to reject a particular form of contract or particular term if disadvantageous to the employers interest.
Operations On Site
Ordering extra work
41.	The employer’s express authority should be obtained - it may be negligent to proceed in the absence thereof: Wilks v. Thingo RDC 1954 164 EG 86. The 1992 Standard Form of Agreement for the Appointment of an Architect allows the architect to make an "alteration, addition or omission" without knowledge and consent but only in an emergency.
	Issuing instructions and information
42.	In Faulkner v. L Borough of Newham ⁴⁶the contractor proceeded regularly but not diligently but the architects took the view that they could not issue a notice under the relevant JCT form unless the contractor failed in both respects⁴⁷. The architects’ inaction compelled the employer to negotiate the contractors’ withdrawal from site at an excessive cost which the employer sought to recover from the architects. The architects argued that given the obscurity of the clause, they were not in breach of contractual duty because an ordinarily competent architect could similarly have misconstrued it. It was held that common sense dictated that the contractor could be dismissed if he was either not diligent or failed to proceed regularly; and a reasonably competent architect would have taken his clients pleas to issue a notice as a cue to seek legal advice; or advise the employer to seek legal advice.
Extent of duty to inspect
43.	East Ham v. B Sunley⁴⁸: some defects and insufficiencies may escape the architect’s notice. The 1962 RIBA conditions of engagement required an architect to give periodical supervision and inspection as may be necessary - in Sutcliffe v. Chippendale ⁴⁹this meant inter alia "following the progress of the work" and taking steps to see that the work "complied with the general requirements of the contract" (p.162).
44.	The Court in Corfield v. Grant ⁵⁰looked not at the "number of hours worked on site" but at whether the attention given was "enough for this particular job". These dicta tended to suggest that an architect must achieve a particular result thereby imposing a duty higher than that of exercising reasonable care and skill. In DNH v SVM HH J Bowsher QC commented that this broad approach is "in some cases" the right approach. He also adopted the dicta of Lord Hoffman in South Australia Asset Management Corporation v York Montague.⁵¹ referred to above about first identifying the kind of loss in issue. As the Claimant had limited the claim to electrical cable damage the Court had only to consider to what extent the supervisory duties of the design professional bore upon cable damage.
	What is the current approach to causation where inspection has failed to detect defects? In DNH v SVM the Court cited the familiar authorities which caution against too scientific an approach but added:
			"..the modern view of the man in the street.. is less rosy than the romantic vision of ..the man on the top of the Clapham omnibus. The test is what an informed person in the building industry ( not the man in the street) would take to be the cause..on a broad view"⁵²
	Where defective work has been both performed by the contractor and overlooked by the architect, the Court of Appeal will not lightly interfere with a first instance apportionment of liability which appears to be reasonable. In McKenzie v Potts⁵³ the contractor took the lion’s share of blame (60%) for misinforming the architect ( who didn’t check) about the nature of backfill material.
Reporting on performance of other professionals during the works
45.	In Chesham v. Bucknall Austin ⁵⁴ Claimant (C) was a property developer; DD were (i) project manager (ii) architect (iii) structural engineer (iv) QS. C said that all design professionals should have advised it of "actual or potential deficiencies" in the performance of other design professionals of which it knew or ought to have known which caused design defects or increases in time take by contractor to finish. The express terms of the architect’s contract at that time were:
			2.38 - provide management from inception to completion; ... appoint and co-ordinate consultants, construction managers, agents and contractors; monitor time cost and agreed targets; monitor progress of the works.
	It was held that it was arguable that the architect owed a duty of care to warn of the structural engineer’s and quantity surveyor’s actual or potential deficiencies. The duty was "a continuing duty to report deficiencies in performance as the Defendant in question came to know of them." and would continue "until the relevant Defendant’s engagement on the project came to an end". (p.128).The context was that when the architect was engaged there was going to be a standard form of contract together with the imminent retention of the structural engineer and the quantity surveyor.⁵⁵ HH J Hicks based his conclusion on the express wording of clause 2.38 above:
			"Although what is to be monitored is not in this case explicitly the performance of the other consultants there is not much point in reporting on failure to meet time and cost targets or to maintain due progress of the works if the reports do not attempt to identify the causes of those failures." (my emphasis).⁵⁶
	This conclusion was reached despite a further clause (then 3.6, now 4.1.7 of the 1999 Standard Form) requiring the Client to hold the consultant not the architect responsible for the competency of the consultant’s performance.
	Would the same result necessarily prevail under SFA/92 and SFA/99? In SFA/92 some of the key terminology is absent. Clauses 4.1.5 and 4.2.4 refer to "co-ordination" and "integration" by the architect, but not "monitoring".
	However under SFA/99 where the client designates the architect as Lead Consultant during construction works, he or she is to inter alia monitor the work of Consultants and Site Inspectors to the extent required for the administration of the building contract.(Services Supplement:"Lead Consultant and Contract Administrator", para 3)
CERTIFICATION.
Standard of care
46.	In Sutcliffe v Chippendale & Edmondson⁵⁷ Judge Stabb QC accepted that while a prolonged or detailed inspection was impractical for the purposes of interim certification, "more than a glance round" was needed, together with close liaison with the Quantity Surveyor. Architects may have some latitude by analogy with a case involving Engineers Secretary of State for Transport v Birse Farr.⁵⁸ There the Court noted certification may be a complex exercise involving voluminous material. An assessment by an Engineer of an appropriate interim payment "may have a margin of error either way". At the interim stage "it cannot always be an exact science",
47.	An "impressionistic" approach may not suffice when considering extensions of time. In John Barker Construction Limited v London Portman Hotel Limited⁵⁹ the Claimant building contractors disputed extensions of time granted by the architect retained by the Defendant employer of works. A programme had been prepared at the time of an acceleration agreement and the Claimant’s expert produced charts showing the effect of subsequent variations on the programme. The Court found that the Defendant’s architect’s corresponding assessment of the same issues was flawed because the architect had made "an impressionist rather than a calculated assessment" of the time he thought was reasonable for the various items individually and overall. The architect’s allowances bore "no logical or reasonable relation to the delay caused".⁶⁰ In other words the assessment of a fair and reasonable extension though involving an exercise of judgment, requires that the judgment must have a fair and rational basis.
	In The Royal Brompton Hospital NHS Trust v Hammond CILL 3/2001 p1714, HHJ Seymour QC sitting in the TCC noted that following JD Williamsn v M Hyde referred to above , in the three cases where the Bolam test does not apply, the court could supply any lack of expert evidence by applying its own common sense. However he declined to do that generally where the issue was negligent certification of extensions of time unless there was a straightforward error. There was only one such in the present case - where the architects had granted an extension without considering whether the particular activity ( part of wall and floor finishes) had actually delayed the progress of the whole works
Negligent final certification by Architect under the "original wording" of cl 30.9.1 of JCT 1980
48.	Clause 30.9.1 of JCT 1980 provided, as originally worded "...The Final Certificate shall have effect in any proceedings arising out of ........... this contract as (30.9.1.1) conclusive evidence that where the quality of materials or the standard of workmanship are to be to the reasonable satisfaction of the Architect, the same are to such satisfaction". In Crown Estates v John Mowlem⁶¹, Crown Estates retained Mowlem to construct a commercial development under JCT Standard Form 1980 edition. There were doubts about the quality of glazing, slates and courtyard paving, but a final certificate was issued. In the context of a dispute about extension of time to commence arbitration, the Official Referee (as he then was) ruled that the final certificate was conclusive only as to matters relating to standard and quality which were actually expressed to be for then satisfaction of the Architect. The Official Referee was influenced by dicta of Lord Diplock in Gilbert-Ash v Modern Engineering:⁶²
			"............ One starts with the presumption that neither party intends to abandon any remedies for [breach of contract] arising by operation of law, and clear express words must be used to rebut this presumption ................".
49.	Mowlem appealed contending that under clause 30.9.1.1 all matters of standards and quality of work and materials were for the reasonable opinion of the Architect, and so were concluded (in the absence of a suitable notice of arbitration) by the issue of a Final Certificate. The Court of Appeal agreed , holding that clause 2.1.4 and clause 30.9.1.1 were not concerned merely with fixing contractual standards, but ensuring compliance with them.⁶³
50.	The decision created much difficulty for architects⁶⁴. It is ordinarily very difficult for an architect to know with any certainty whether there are any latent defects in the contractors’ work, and Crown Estates may well apply to such defects. If an architect issues a Final Certificate in circumstances where there are latent defects, the employer may be constrained to issue proceedings against the architect for want of supervision as his only means of recourse. The Joint Contracts Tribunal therefore introduced a Final Certificate procedure applying to extant Contracts and by amendment number 15 to the contract form , clause 30.9.1.1 provides that the Final Certificate is conclusive evidence only where "any of the particular qualities of any materials or goods or any particular standard of an item of workmanship was described expressly" in the contract drawings, bills and specifications.
51.	The interest of Crown Estates for the purposes of this seminar lies in the background it provides to a possible area of conflict between the decisions in Beaufort Developments, and in Oxford University Fixed Assets v Architects’ Design Partnership.⁶⁵ The result in Beaufort is well known. It is not necessary to detail this case save to note that Lord Hoffmann stated that a certain class of certificates namely Final Certificates were intended to have conclusive effect.⁶⁶ He did not consider (there was no need) exactly the matters upon which they were conclusive. Both Lords Hoffman and Hope cited Lord Diplock’s "presumption" with approval.⁶⁷
52.	By contrast the reasoning behind Lord Diplock’s presumption played little part in the decision of the Court of Appeal in Oxford University Fixed Assets. The Claimant employer of works engaged a contractor, Wimpey, to construct a pharmacology unit under JCT 1980 containing clause 30.9.1 in its original form. The Claimant maintained that certain defective works had not been adequately remedied and sued the Defendant architect who had issued a Final Certificate under clause 30.9.1. The Defendant architect sought a contribution from the contractor under the Civil Liability (Contribution) Act 1978. The contractor maintained it could not be so liable to the architect as to the issue of a Final Certificate by the architect prevented the contractor being liable to pay the Claimant any damages. The Court of Appeal upheld the ontractor’s argument. The effect of the Final Certificate was that it operated as an evidential bar, which would have precluded the employer of works from being able to prove the facts necessary to establish liability against the contractor. Accordingly the contractor was not "liable" to the Claimant within the meaning of Section 1 (6) of the 1978 Act. The idea of the "evidential bar" was said to be derived directly from the judgment of Lord Justice Stewart-Smith in Crown Estates.⁶⁸ Section 1 (1) of the 1978 Act cannot apply if it has been decided that a person has no liability or if liability could not in fact in law be established. Clause 30.9 was clear. For the contractor to resist contribution there did not have to be a formal award or judgment that it had no liability.
	This recent decision raises certain questions:
	(a)	should the Architect have protected itself by inviting the parties during the work to execute the "declaration of non-finality" referred to in paragraph 52 above?. Would the contractor readily have agreed to that course of action after the works had started?
	(b)	surely an "evidential bar" mean that there has been liability, but since the date of the Final Certificate it cannot be proved. There has therefore been a mere cessation of liability, a situation acknowledged under Section 1 (3) of the 1978 Act as capable of giving rise to a contribution claim. This argument found no favour with the Court of Appeal in Oxford University Fixed Assets. Could this have been a consequence really intended by those who originally drafted clause 30.9 of JCT 1980?
	(c)	in a similar situation could the architects have protected themselves by insisting on an agreement with the employer in the form of SFA/92 or SFA/99? Clause 6.1 of SFA/92 provides that the architect’s liability for loss or damage shall be limited to such sum "as the Architect ought reasonably to pay" after consideration of any contributions due from any other professionals involved, the employer being deemed already to have the benefit of those contributions. Query whether the Unfair Contract Terms Act 1977 would affect this clause in practice. SFA/99 clause 7.3.2 adopts the same approach but the wording allows greater scope for discretion. The architect is to pay a "just and equitable" sum and the other professionals are deemed also to have paid "just and equitable" sums.
Does the Architect owe a duty of care in tort to the contractor in respect of the Certificates he issues?
53.	In Pacific Associates v. Baxter ⁶⁹ the Claimant entered into a contract with the ruler of Dubai to dredge a lagoon in the Persian Gulf. The Court of Appeal held that the engineer supervising the works owed no duty of care to the Claimant in respect of his certificates. Where a construction contract is subject to the Housing Grants Construction and Regeneration Act 1996 and adjudication is available to the contractor under Section 108, there may be a case for upholding the result in Pacific Associates. However, in all other cases certain developments suggest that it may be doubtful whether or not the decision should still be followed, in particular⁷⁰:
	(a)	Beaufort Developments (MI) Limited v. Gilbert Ash (MI) Limited;
	(b)	Recent extensions of duties of the Hedley Byrne & Heller type;
	(c)	Recent review of concurrent duties in contract and tort.
54.	There has already been comment in this seminar on Beaufort Developments. The greater willingness to recognise duties of the Hedley Byrne type which has been shown recently by the Courts is illustrated by Barclays Bank v. Fairclough Building ⁷¹ where the Court of Appeal found that a skilled contractor undertaking maintenance work to a building assumed a responsibility which invited reliance no less than the financial or other professional adviser does in undertaking his work. As to concurrent duties, Pacific Associates Russell LJ spoke of grafting onto the contractual relationship what might be termed a "parasitic duty". The Court referred to Tai Hing Cotton Mill v. Liu Chong Hing Bank⁷² As is well known in Henderson v. Merrett Syndicates, the House of Lords concluded that the common law was not antipathetic to concurrent liability and this approach has been continued in later decisions of the Technology and Construction Court, for example, Chesham v. Bucknall Austin (ibid). In Holt v Payne Skillington⁷³ solicitors were found to owe a concurrent duty in tort wider than their duty in contract.
55.	Will the Contracts (Rights of Third Parties) Act 1999 make any difference to this problem? In the different context of constuction sub contracts, the law commission cleary intended the proposed reform ought not to upset chains of contracts " well understood in the construction industry"⁷⁴ Will construction contracts involving design professionals be accorded similar status? SFA/99 states in clause 7.6:
			"nothing in this Agreement shall confer or purport to confer on any third party any benefit or the right to enforce any term of this Agreement"
Limitation
56.	We should note some recent developments in limitation cases which may affect the liability of design professionals. Section 32 of the Limitation Act 1980 provides that where any fact relevant to the Claimant’s cause of action has been deliberately concealed from him by the Defendant, time will not run until the concealment has been discovered. In Cave v Robinson CA 20 02 01 the Claimant wanted to retain a one hundred year mooring right over land being sold by him. Instead, in 1989 the solicitor handling the sale drafted a simple mooring licence which lasted for about five years. The Claimant waited over six years to commence proceedings against the solicitor. He was allowed to rely on S 32 and the CA applied an earlier decision, Brocklesby v Armitage and Guest [2001] 1 AER 172 to the effect that S 32 requires deliberate concealment in no sense greater than that the commission of the act was deliberate in the sense of being intentional and involved a breach of duty whether or not the actor appreciated the legal consequences of his act. There was no necessity to show fraud or unconscionable conduct.
What is the correct measure of loss of damages for over certification?
57.	In Turner Page Music Limited v Torres Design Associates Limited⁷⁵, the Claimant engaged the Defendants to provide design and other professional services in connection with the redevelopment of a cinema. The Claimant was in a hurry to open the cinema and did not complain against the architect that it failed to halt the works whilst defects were put right. The Court found that the architect had separate duties, even if defective work was accepted, not to value or certify it at more than it was properly worth, or to withhold certification for an appropriate part pending rectification. The measure of damage in this case was therefore the amount of over-certification.
	It is no defence in such a case for an Architect to say he believes that sufficient retention money is held by the employer of works to cover the defects. Retention money guards against latent defect; it is not intended to protect owners against defect known to the Architect at the time of certification: Townsend v Stone Toms.⁷⁶
© Copyright 2002 Timothy Trotman

0	88 BLR at p 13
1	1989 44 BLR 33
2	1997 56 CON LR p42
3	1994 1 AC 428
4	82 BLR at p 114
5	CONST. LJ 1996 Vol 12 No. 6 p402
6	The same kind of result prevailed in Turner Page Music Limited v Torres Design . where the contract price was approximately £500,000 in respect of works which ultimately cost approximately £800,000 to complete. To point to the eventual cost could not without more establish breach of contract by the design professionals.
7	[1999] Ll R P.N. 814 Toulson J
8	1987 37 BLR 92
9	1980 14 BLR 1
10	14 BLR 31
11	60 CON LR at p90
12	Victoria University of Manchester v Wilson 1984 2 CON LR 43 at p74
13	ibid p 90
14	CILL Jan. 99 1452
15	ibid, at p 1454
16	1988 18 CON LR 1
17	18 CON LR at p12
18	see the dissenting judgment of Lord Justice Bingham at p80
19	(1997) 13 Con.L.J.95
20	HS.5 and HS.6
21	14 BLR 36-37
22	CILL 1997 p1263
23	(1997) 59 Con LR 145
24	1984 2 Con LR p21
25	60 Con LR
26	14 BLR at p. 47
27	The closing paragraph of Lord Scarman’s Judgment is misleading in that whereas it refers to undertaking "a design and supply" is clearly contemplated - see Note 39 on page 182 of Jackson & Powell 4th edition.
28	1986 38 BLR
29	1975 3 AER p.99 t 103-104
30	(Jackson and Powell, Professional Negligence 4th Ed, 2-89)
31	Much may depend upon how the duty to review is pleaded - an averment that the design professional should have warned of actual or potential deficiencies in his own performance did not impress the Court in Chesham v. Bucknall Austin 82 BLR at p. 124 as "the authorities display a reluctance to import a duty of self accusation except in very clear cases".
32	60 ConLR at p 89
33	42 BLR at p 78
34	60 ConLR at p90
35	With consequent implications for the running of the limitation period in contract. See Construction Law Journal ref: duty to review a design - is it real or artificial, Alexander Nissan Vol. 1997 Vol. 13 No. 4; and the first instance Judgment of Judge Stabb QC in London Borough of Merton v. Lowe referring to the subsequent discovery of a defect in design which "reactivates or revives" the architect’s duty in relation to the design.
36	56 (1997)Con LR at p.170
37	[1984] 2 Ll Rp.211
38	18 Con LR p.10-11
39	per Lord Justice Bingham : - it had never to his knowledge been held that a professional man who advises on a tax scheme or on drafting trading conditions is thereafter bound to advise his client if within a period of years the statutory provisions or the relevant authorities change. Nor has it ever ... been suggested that a retired practitioner is bound during his retirement, to keep in touch with developments in his profession in this way... the Plaintiff Council says there is such a duty where there is danger to life and limb ... if any such duty at al is to be imposed, the nature, scope and limits of it require to be carefully and cautiously defined. The development of the law should be gradual and analogical (18 Con LR p. 146).
40	CILL 6/1997 at p. 1267
41	CILL Jan 99 p.1446
42	Mr. Justice Dyson
43	On the basis of Flamar v. Denmore [1990] 1 Ll R 4343
44	Decision upheld per Beldam LJ : mere fact that the pleader claims them under guise of payments made under a mistake of fact cannot avoid the limitation of liability - Moore v Yakeley Associates Ltd CA 23 03 00 Beldam LJ / Chadwick LJ / R Walker LJ
45	(1994) 71 BLR at p. 15
46	71 BLR 6.
47	JCT Contract for use by Local Authorities with Quantities 1963 Ed: Clause 25 allowed architect to give notice if the contractor 25(1)(B) "failed to proceed regularly and diligently with the works".
48	1966 AC 1406; at p. 443
49	18 BLR
50	59 BLR 102
51	1997 AC 191 at 210
52	60 ConLR at p102
53	50 ConLR 40
54	82 BLR at p.102
55	Although not the project manager, and therefore no duty expressed, implied or at common law to report upon the product manager’s deficiencies was found.
56	The Court (Judge Hicks QC) continued that if there was no such duty as a matter of construction then in the circumstances of the case there was "necessarily an implied term to the same effect" and a concurrent duty at common law to the same extent.
57	1982 18 BLR 149
58	1993 62 BLR 36
59	1996 83 BLR 31
60	Mr. Recorder Toulson QC as he then was
61	70 BLR 1
62	1974 AC 689 at 717G
63	The result was heavily criticised by Ian Duncan-Wallace QC in Not what the RIBA/JCT meant: loose cannon in the Court of Appeal 1995 CONST LJ vol. 11 no. 3
64	and has been distinguished in Scotland Belcher Food Products v Miller & Black 1999 SLT 142
65	1999 Const LJ vol 15 no. 6
66	88 BLR p13
67	88 BLR p17 and p25
68	1999 Const LJ vol 15 , at p479
69	44 BLR 33
70	See dicta at para 52 confining Pacific - para 53 there is no reason in principle why the professional agent of the employer cannot become liable to a contractor for negligent mistatements made by the agent to a contractor to induce the contractor to tender Jarvis v Castle Wharf 19 01 01 P Gibson LJ / Arden LJ / Collins JEngineer preparing mechanical services specification owed no duty to mech services contractor : Turton v Kerslake Ll R PN 967 (NZ)
71	[1995] 76 BLR at 24C
72	[1986] 1 AC p.80
73	77 BLR 51
74	Law Com. 242, para 7.18, p81
75	ibid
76	1984 27 BLR 26