THE DESIGNER’S DUTY –
TIME FOR REVIEW
A paper presented to a meeting of
the Society of Construction Law
in London on 4th November 2008
Alexander Nissen QC
December 2008
151
www.scl.org.uk
THE DESIGNERS’ DUTY –
TIME FOR REVIEW
Alexander Nissen QC
Introduction
To understand their risk exposure fully, architects, engineers and other
construction professionals engaged in design work need to know the extent of
their design liability. ‘Extent’ for these purposes means two things: what they
are obliged to do, and for how long that obligation continues.
By its very nature, design is not a static concept. The notion of design
development is well-understood. Sometimes, the need to alter the design
exceeds mere development and involves a reappraisal of aspects of the
original design concept. On an ongoing project, a variety of matters can occur
which require reconsideration of the original design. Sometimes these events
can occur after completion.
This paper is concerned with the extent of the duty to revisit or review the
original design and seeks to examine the following questions in the light of
recent developments in case law:
1.
What does the duty to review a design comprise?
2.
How long does the duty to review a design last?
3.
What are the legal consequences of breach of the duty to review a
design in the sense of damages claimable?
For simplicity, the notional designer selected in this paper is the architect,
though the same considerations apply equally to engineers and other
construction professionals undertaking design.
1. What does the duty to review a design comprise?
It has long been established that an architect has a duty to review his design.
The writer has previously analysed the cases which established this principle.1
The Court of Appeal in Brickfield Properties v Newton held that, ‘The
architect is under a continuing duty to check that his design will work in
practice and to correct any errors which may emerge.’2
This principle has been applied in a number of well known construction cases
since. HHJ Stabb QC in London Borough of Merton v Lowe declared himself
1
2
Alexander Nissen, The duty to review a design – is it real or artificial? Const LJ 1997,
13(4), pages 221-6.
Brickfield Properties v Newton [1971] 1 WLR 862, CA, per Sachs LJ at page 873F (also
[1971] 3 AllER 328).
1
‘… now satisfied that the architect’s duty of design is a continuing one’,3
while HHJ Newey QC in Equitable Debenture Assets Corporation v William
Moss Group stated that,
‘Morgan’s obligation to design International House was not, I think, a
once and for all obligation, performed when a complete set of working
drawings, which included Alpine’s, was sent to Moss [the main
contractor]. Morgan had both the right and the duty to check their
initial design as work proceeded and to correct it if necessary.’4
In University of Glasgow v William Whitfield, HHJ Bowsher QC also spoke of
the duty to design as ‘a continuing duty.’5
What obligations are comprehended in the duty to review must, in part,
depend on what the architect has agreed to do within the envelope of his
professional duty. What he has been originally engaged to do must be
expected to have an effect on the nature of the continuing duty, if only because
the opportunities for review will be so different.
In the early cases, the judges still spoke routinely of ‘supervision’ of the
project. Thus in Victoria University of Manchester v Hugh Wilson HHJ
Newey QC explained the architect’s contractual and tortious duties as:
‘… to exercise the skill and care to be expected of a competent architect
in designing the Centre, in supervising its construction and, when and if
necessary, reviewing and amending the design.’6 [emphasis added]
More recently, it could not be taken for granted that the architect would have
undertaken a duty of supervision. In the RIBA standard form conditions of
engagement, the word ‘supervision’ has been conspicuously absent for some
25 years. It is true that in some more modern cases like Alexander Corfield v
David Grant, HHJ Bowsher QC could still be found referring to
‘supervision’.7 However, that appears to have been based on implied terms of
engagement. More typical today would be Consarc Design v Hutch
Investments, where the same judge observed that while
‘The older forms of contract required the architect to “supervise”. The
more recent contracts including the contract in this case, require the
architect to “visit the Works to inspect the progress and quality of the
Works”.’8
3
4
5
6
7
8
London Borough of Merton v Lowe (1981) 18 BLR 130, CA, noted in the Commentary,
page 133.
Equitable Debenture Assets Corporation Ltd v William Moss Group Ltd (1984)
2 Con LR 1, TCC, at page 24.
University of Glasgow v William Whitfield (1988) 42 BLR 66, QBD(OR), at page 78
(also (1989) 5 Const LJ 73).
Victoria University of Manchester v Hugh Wilson (1984) 2 Con LR 43, at page 73.
Alexander Corfield v David Grant (1992) 59 BLR 102, QBD(OR), at page 119 (also
29 Con LR 58).
Consarc Design Ltd v Hutch Investments Ltd (2002) 84 Con LR 36, TCC, at para 88
(also (2003) 19 Const LJ 91).
2
His conclusion was that, ‘It seems to me that inspection is a lesser
responsibility than supervision.’9
It may be readily conceded that engineers do still undertake supervision,10 that
architects in many jurisdictions have statutory obligations of supervision11 and
that UK architects could still undertake supervision expressly or by
implication.12 But it seems logical that the ‘lesser responsibility’ of inspection
would afford fewer opportunities for a review of the design than a full
supervision obligation. It is surely beyond question that an architect who
undertook design services only and had no part in the construction phase must
be regarded differently in terms of ongoing responsibility. If that is right, it
would follow that different levels – and different durations – of a duty to
review would attach to different packages of professional services to be
supplied.
In Tesco Stores v The Norman Hitchcox Partnership,13 the architect had been
engaged to design shell works but was not involved in the site-based phase of
the works whilst the building contract was in progress. Later he was engaged
by Tesco in respect of the fitting out works of the completed development.
HHJ Esyr Lewis QC said that such latter engagement could not enlarge the
contractual duties under the original retainer to design the shell works. As to
the latter, he had a continuing contractual obligation to answer reasonable
queries about his drawings which might have arisen during the construction
period and to draw attention to and, if necessary, correct any deficiency of
which he became aware during that period.
Precisely what it is that the architect must do as part of his obligation to
review was addressed in the Technology and Construction Court in New
Islington and Hackney Housing Association v Pollard Thomas and Edwards.14
In that case, Dyson J (as he then was) found that the extent of the duty would
indeed depend upon what the designer had originally undertaken. The case
concerned serious noise disturbance experienced by tenants in a housing
association development as a result of inadequate sound insulation between
flats. Since it was in dispute whether the claim against the architects was out
of time, it became crucial to establish when the cause of action accrued.
Dyson J began his consideration, the most detailed undertaken of the issue, by
accepting the proposition that ‘a designer who also supervises or inspects
work will generally be obliged to review that design up until that design has
9
10
11
12
13
14
Consarc Design, see note 8, at para 88.
See for example Department of National Heritage v Steenson Varming Mulcahy (1998)
60 Con LR 33.
Singapore, Malaysia and Hong Kong SAR, for example.
For a full consideration of the duties involved in inspecting the quality of work, see
McGlinn v Waltham Contractors Ltd (No 3) [2007] EWHC 149, TCC (111 Con LR 1).
Tesco Stores Ltd v The Norman Hitchcox Partnership Ltd (1997) 56 Con LR 42,
QBD(OR).
New Islington and Hackney Housing Association Ltd v Pollard Thomas and Edwards Ltd
[2001] BLR 74, TCC (also 85 Con LR 194, 17 Const LJ 55).
3
been included in the work’, and noting that, ‘In a number of cases, it has been
held that this duty continues until practical completion.’15
Even at this stage Dyson J added the caveat that, ‘… it is necessary to look at
the circumstances of each engagement …’16
His view of the Sachs LJ dictum in Brickfield Properties17 is enlightening:
‘But Sachs LJ was not concerned to explore the scope of an architect’s
continuing duty to review his design. In my judgment, the duty does not
require the architect to review any particular aspect of the design that he
has already completed unless he has good reasons for so doing.’18
[emphasis added]
Dyson J also took a restrictive view of Judge Bowsher’s comments in the
University of Glasgow case19 stating:
‘I do not believe that Judge Bowsher was stating a general principle that
an architect is usually under a duty to review his design even after
practical completion. I think that his decision was heavily coloured by
the special facts of the case. In my view, that case should be regarded
as an example of an architect agreeing to investigate the cause of defects
in a building outside the terms of his original retainer, and not as an
example of the performance of a continuing duty to review his design
under the original contract of engagement.’20 [emphasis added]
So what are the circumstances in which the architect must review his design?
The earlier cases had led the writer to conclude that some form of trigger event
was necessary and it was not sufficient merely to point to the fact of the
architect’s continuing involvement in the project.
Thus HHJ Stabb QC in Merton v Lowe, while describing the duty of design as
‘a continuing one’, qualified this by reference to ‘… the subsequent discovery
of a defect in the design, initially and justifiably thought to have been suitable’
the effect of which was that it ‘reactivated or revived the architect’s duty in
relation to design and imposed upon them the duty to take such steps as where
necessary to correct the results of that initially defective design.’21 [emphasis
added]
It is true that HHJ Newey QC in Equitable Debenture Assets Corporation had
referred to an obligation to design by the architects which included ‘the duty
to check their initial design as work proceeded and to correct it if necessary’22
[emphasis added]. However it should be recalled that on the facts, the sealant
15
16
17
18
19
20
21
22
New Islington and Hackney Housing Association, see note 14, at para 14. He cited
Equitable Debenture Assets Corporation and Victoria University of Manchester, see
notes 4 and 6.
New Islington and Hackney Housing Association, see note 14, at para 14.
Brickfield Properties, see note 2.
New Islington and Hackney Housing Association, see note 14, at para 20.
University of Glasgow, see note 5.
New Islington and Hackney Housing Association, see note 14, at para 21.
Merton v Lowe, see note 3, at page 133.
Equitable Debenture Assets Corporation, see note 4, at page 24.
4
of the curtain walling (whose erroneous specification lay at the heart of the
problem) had failed from the start, so that the ‘buildability’ difficulties
experienced by the contractors had been known to the architect for many
months. In other words, it should not be assumed that HHJ Newey QC was
suggesting the duty to review the design arose automatically in the absence of
a trigger event.
More obviously consistent with Merton v Lowe23 was the qualification of HHJ
Newey QC in the Victoria University of Manchester case to the effect that the
architect’s duties included ‘when and if necessary, reviewing and amending
the design.’24
Similarly, HH Judge Bowsher QC in the University of Glasgow case was
concerned with the situation ‘… where, as here, an architect has had drawn to
his attention that damage has resulted from a design which he knew or ought
to have known was bad from the start ...’25 In such circumstances, the
designer would have ‘a particular duty to his client to disclose what he had
been under a continuing duty to reveal, namely what he knows of the design
defects as possible causes of the problem.’26
The writer previously concluded that it would be wholly artificial to suggest
that, absent a trigger event, the architect should be under a continuing duty to
look at and review his design. This conclusion was consistent with that
subsequently reached by Dyson J in New Islington and Hackney Housing
Association, where he considered the practical implications with a
hypothetical example of negligent foundation design:
‘But in what sense and to what extent is the architect under a duty to
review his negligent design once the foundations have been designed
and constructed? In my view, in the absence of an express term or
express instructions, he is not under a duty specifically to review the
design of the foundations unless something occurs to make it necessary,
or at least prudent, for a reasonably competent architect to do so.’27
Dyson J gave examples of ‘triggers’ of the duty such as if:
‘… before completion, the inadequacy of the foundations causes the
building to show signs of distress; or if the architect reads an article
which shows that the materials that he has specified for the foundations
are not fit for their purpose; or if he learns from some other source that
the design is dangerous.’28
23
24
25
26
27
28
Merton v Lowe, see note 3.
Victoria University of Manchester, see note 6, at page 73.
University of Glasgow, see note 5, at page 78.
University of Glasgow, see note 5, at page 78.
New Islington and Hackney Housing Association, see note 14, at para 15-16.
New Islington and Hackney Housing Association, see note 14, at para 16.
5
In such circumstances of actual knowledge, Dyson J was in ‘no doubt that the
architect would be under a duty to review the design and, if necessary, issue
variation instructions to the contractor to remedy the problem.’29
On the facts, Dyson J rejected the suggestion that a trigger event had actually
occurred. All that had happened was that, once the problem of soundproofing
had become apparent after practical completion, the employer had asked two
discrete questions about the soundproofing specification which the architect
had answered. Given that the architect’s engagement was over, it was not
incumbent on him to do anything else, such as revisit the quality of his
original design.
In summary, Dyson J’s analysis resolves two questions and leaves one
unresolved. First, it shows that the absence of a trigger would be fatal to the
claim:
‘But in the absence of some such reasons as this [the examples set out
above], I do not think that an architect who has designed and supervised
the construction of foundations is thereafter under an obligation to
review his design.’30
Second, it is now clear that the existence of a duty to review must depend
upon some continuing involvement with the project after the design stage, at
least in contract:
‘Whether he is in fact under such a duty when he has actual or
constructive knowledge of his earlier breach of contract will depend on
whether the contract is still being performed. If the contract has been
discharged (for whatever reason), then the professional person may be
under a duty in tort to advise his client of his earlier breach of contract,
but it is difficult to see how he can be under any contractual duty to do
so.’31 [emphasis added]
This latter proposition is supported by the views of Ramsey J in Oxford
Architects Partnership v Cheltenham Ladies College (discussed further below)
in which he said:
‘If an architect merely carries out a design which is issued to a
contractor for construction then it is difficult for a continuing duty to
arise during the period of construction.’32
The point which Dyson J did not, it is submitted, resolve conclusively is
whether an architect is liable for breach of duty where he is actually wholly
unaware of the trigger event and therefore genuinely fails to realise that there
was a design problem when reasonable skill and care would have enabled him
to do so. An example might be the architect who subsequently should have
become aware of an article in a journal condemning the use of certain
29
30
31
32
New Islington and Hackney Housing Association, see note 14, at para 16.
New Islington and Hackney Housing Association, see note 14, at para 16.
New Islington and Hackney Housing Association, see note 14, at para 18.
Oxford Architects Partnership v Cheltenham Ladies College [2006] EWHC 3156, TCC,
at para 24 (also [2007] BLR 293).
6
materials which he had specified in the past, in circumstances where the
architect had no actual knowledge of the article.
The nearest Dyson J came to expressing a view on this point was in holding:
‘In my judgment, the duty does not require the architect to review any
particular aspect of the design that he has already completed unless he
has good reason for so doing. What is a good reason must be
determined objectively, and the standard is set by reference to what a
reasonably competent architect would do in the circumstances.’33
The importation of the Bolam34 standard of reasonable skill and care suggests
the likely answer, but the previous cases had dealt only with situations where a
trigger had occurred to the architect’s knowledge, not circumstances where the
architect was completely unaware of the trigger event.
It may be that HHJ Humphrey LLoyd QC’s decision in Payne v Setchell took
this last point closer to conclusion. The formulation of his finding was that:
‘… a designer’s continuing duty of care only requires a reconsideration
of the design if the designer becomes aware or should have been aware
of the need to reconsider the design’.35 [emphasis added]
That said, the point does not appear to have been fully argued in that case.
In Oxford Architects Partnership, Ramsey J also applied the standard of
reasonable care to the duty to review, once it had been triggered:
‘In terms of a breach of contract, if an architect has good reason to
review any aspect of the design then a breach will occur if the architect
fails to review the design or if the architect reviews the design but fails
to do so properly in accordance with the terms of engagement.’36
Whilst this relates to the standard to be applied once the duty arises, these
words might also be extended to the test for determining whether the duty
arises.
The indications are, therefore, that a duty to review can arise even if the
architect has no actual knowledge of the trigger event, although in practice he
usually will.
Many of the previous cases, including New Islington and Hackney Housing
Association37 in particular, were concerned with trigger events which occurred
after the original design had been fully implemented. In Oxford Architects
Partnership, it became relevant to consider when the duty to review a design
arose during the normal RIBA stages.
33
34
35
36
37
New Islington and Hackney Housing Association, see note 14, at para 20.
Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, [1957] 2 All ER
118, QBD.
Payne v John Setchell Ltd [2002] BLR 489, TCC, at para 21.
Oxford Architects Partnership, see note 32, at para 27.
New Islington and Hackney Housing Association, see note 14.
7
In that context, Ramsey J attempted to dispel what he called ‘some confusion’
over the effect of the continuing duty to review as a cause of action. Part of
this confusion lies in the ambiguous terminology of a ‘continuing duty to
review a design’ when, in truth, it is no such thing:
‘If an architect produces a design which is in breach of the terms of
engagement and issues it to the contractor who constructs the work to
that design, then a breach of contract will occur when, for instance, the
architect under Stages F to G “prepares production drawings” or under
Stage J “provides production information” as required by the building
contract, a cause of action will then accrue based upon that breach of
contract.’38
However, the so-called ‘continuing duty’ would not
‘… give rise to a single and continually accruing cause of action.
Rather, a different cause of action accrues at various stages. Thus, the
cause of action for a failure properly to review the design is a different
cause of action from a failure to provide a proper design in the first
place. The causes of action will therefore accrue on different dates.’39
As the editors of the Building Law Reports point out in their Commentary, this
may present practical difficulties in determining whether the architect is under
a continuing duty to review the design up until the date of completion of the
negligently designed work.
‘Once an architect has completed his design, an obligation to ‘review’
might well occur at various stages of the architect’s engagement. For
example, the design may be submitted for regulatory approval, will be
issued for construction and may be passed to a specialist sub-contractor
to enable that specialist to prepare a more detailed design and working
drawings. Whilst there may be many opportunities for reconsidering the
design, the relevant question is whether the architect is under some
obligation to review the design.’40
In other words, is a trigger event required to activate the duty to revisit the
original design at each of these stages? Despite these difficulties in individual
cases, Ramsey J’s analysis should be seen as an advance in understanding the
nature of the designer’s duty to review his original design.
2. How long does the duty to review a design last?
When considering the question of whether, at a given point in time, the
architect still has ‘responsibility’ for the design, it is important to distinguish
between duty and liability. In other words, the term ‘responsibility’ must be
used with caution because it can be used synonymously with either of those
terms. As a matter of practicality, the architect will wish to know the duration
of his duty, ie the period during which he must be active to protect the client’s
interests (and in principle those of third parties within the more limited scope
38
39
40
Oxford Architects Partnership, see note 32, at para 28.
Oxford Architects Partnership, see note 32, at para 29.
Oxford Architects Partnership, see note 32, [2007] BLR 293, at page 295.
8
of the tort of negligence). One might speak commonly of his ‘responsibilities’
continuing during this period. But, as should be apparent to a lawyer, at least,
this is potentially quite different from the duration of the architect’s
responsibility for review of design, in the sense of duration of liability.
The early cases sought to address the issue of duration in the first sense
described, but must now be seen in the light of the most recent judicial
pronouncements. HHJ Bowsher’s view in University of Glasgow was that the
continuing duty of design extends until the building is complete.41 HHJ Hicks
QC, in Chesham Properties Ltd v Bucknall Austin Project Management
Services approved ‘… what I take to be the thrust of Judge Bowsher’s views,
as expressed in the University Court of Glasgow case’ and said that ‘I consider
that such a duty would continue until the relevant defendant’s engagement on
the project came to an end.’42
As set out above, in New Islington and Hackney Housing Association43 Dyson
J observed that the designer who supervises or inspects will be advised to
review his design up until that design has been included in the work, although
he noted that the duty has in some cases continued until practical completion.
From a lawyer’s perspective, the issue of importance is the duration of liability
in respect of the duty to review. This is a matter of limitation and specifically
when the cause of action occurs. In this respect, different considerations apply
in contract and tort.
In contract, the limitation period runs from the date of breach. As Ramsey J
said in Oxford Architects Partnership, there may be several different breaches
of a failure to review, each occurring on different dates.44
Dyson J was very clear about a claim in tort in the New Islington case: ‘In my
judgment, the Association’s cause of action in negligence accrued at the latest
at the date of practical completion.’45 His reasoning was based on what he
called ‘interpretation’ by the Court of Appeal46 of the difficult decision of
Pirelli General Cable Works Ltd v Oscar Faber & Partners.47 As applied to
the case before him, this led to the following result:
‘In the present case, the sound insulation was inadequate from the date
of handover. It was never capable of being fit for the purpose … From
the outset, the building suffered from lack of adequate sound insulation,
just as the building in Tozer Kemsley suffered from an inadequate
heating and air-conditioning plant from the outset. In neither case is it
necessary to identify a date when an occupant actually suffers from the
41
42
43
44
45
46
47
University of Glasgow, see note 5.
Chesham Properties Ltd v Bucknall Austin Project Management Services Ltd
82 BLR 92, QBD(OR), at page 128E (also 53 ConLR 1).
New Islington and Hackney Housing Association, see note 14.
Oxford Architects Partnership, see note 32.
New Islington and Hackney Housing Association, see note 14, at para 41.
In London Congregational Union Inc v Harriss & Harriss [1988] 1 All ER 15, CA,
approving Tozer Kemsley and Millbourn Holdings Ltd v J Jarvis & Sons Ltd (1983)
1 Const LJ 79, QBD(OR).
Pirelli General Cable Works Ltd v Oscar Faber & Partners [1983] 2 AC 1, HL.
9
defect. It is the building that suffers from the defect, and that is what is
required to enable the owner to complete his cause of action in
negligence.’48
The conclusion was that ‘the Association’s cause of action accrued when the
buildings were handed over’,49 ie at practical completion.
In the Building Law Reports Commentary to Oxford Architects Partnership,50
we are reminded that the first question which has to be answered is whether
the loss is properly describable as physical damage or pure economic loss.51
In all tort cases, the limitation period runs from the date of damage and it is in
this context that the question arises. Ramsey J reviewed the cases, including
Abbott v Will Gannon & Smith,52 in which the case of Pirelli53 was stated to
remain good law. On the facts, Ramsey J concluded that relevant damage in
respect of the defects with which he was concerned occurred during the course
of construction. He noted that although the employer does not obtain
possession of the building until practical completion there is a complete cause
of action when and if physical damage occurs before that date.
An unusual feature of the Oxford Architects Partnership case concerned
Article 5 of the RIBA Conditions of Engagement,54 which provided that:
‘No action or proceedings for any breach of this Agreement or arising
out of or in connection with all or any of the Services undertaken by the
Architect in or pursuant to this Agreement, shall be commenced against
the Architect after the expiry of [six] years from completion of the
Architect’s Services, or, where the Services are specific to building
projects Stages K-L are provided by the Architect, from the date of
Practical Completion of the Project.’55
It was argued that this clause permitted the College to bring a claim that was
otherwise time barred provided it did so within six years of practical
completion. On this point, Ramsey J’s conclusions were very clear: the clause
‘… provides a contractual time limit on the College’s ability to
commence proceedings. It does not seek to prevent the Architects from
relying on a statutory limitation defence, rather it is concerned with
48
49
50
51
52
53
54
55
New Islington and Hackney Housing Association, see note 14, at para 41.
New Islington and Hackney Housing Association, see note 14, at para 42.
Oxford Architects Partnership , see note 32.
The distinction will be well understood by lawyers. In basic terms, if the only loss is the
cost of repairing the item which suffers from the defective design (including for these
purposes any repairs to the building consequent thereupon) the loss is purely economic.
If the defective design results in physical damage to person or other property, it is a
physical damage case. An example would be a flood or fire causing damage to contents
or neighbouring properties.
Abbott v Will Gannon & Smith Ltd [2005] EWCA Civ 198, CA, (also [2005] BLR 195,
103 Con LR 92).
Pirelli, see note 47.
RIBA Conditions of Engagement for the appointment of an Architect, CE/95.
Oxford Architects Partnership, see note 32, at para 3.
10
providing an additional contractual limitation on the ability of the
College to bring a claim.’56
Ramsey J has usefully clarified the relationship between contract and statute.
Article 5 did not have the effect of allowing the client to sue up to six years
after practical completion in circumstances where the claim would otherwise
have been statute barred. He agreed that a limitation period could be extended
by contract, which is a welcome confirmation of the principle that has always
been understood, namely that parties can agree by contract whatever they
want, but ‘To do that I consider clear words would be needed.’57 Equally, he
noted that it is possible by contract to reduce the limitation period, and in this
case Article 5 provided ‘an additional contractual limitation on the ability of
the College to bring proceedings.’58
3. What are the legal consequences of breach of duty to review
design in the sense of damages claimable?
The writer’s original article in 1997 concluded that:
‘The damages recoverable from the architect or engineer are not those
which flow from any original error in design, but from the failure to
review the design. Such damages are likely to be more limited than
appears at first sight.’59
If this was right, it would have serious consequences for a claimant, since the
loss and damage might be held to have been caused by the original design
error, potentially a time-barred claim, while the later breach of the continuing
duty would not be causative of loss, although the claim in respect of it was still
within the limitation period.
A similar view was expressed by Jackson and Powell in their leading work on
Professional Negligence which stated:
‘It is submitted that the contractual measure of damages for failure to
review a design where a claim in respect of the original design
obligations is Statute barred should be such as to put a claimant into the
position that he would have been in if the design had been properly
reviewed. Thus if the failure to review occurred after practical
completion a claimant should be obliged to give credit for the (possibly
substantial) costs which would have been incurred at that stage in
correcting the design.’60
56
57
58
59
60
Oxford Architects Partnership, see note 32, at para 16.
Oxford Architects Partnership, see note 32, at para 19.
Oxford Architects Partnership, see note 32, at para 21.
See note 1, at page 226.
Jackson and Powell on Professional Liability, 6th edition, John Powell QC and Roger
Stewart QC (eds), 2007, Sweet & Maxwell, at para 9-032.
11
That paragraph was approved by HHJ Toulmin CMG QC in London Fire and
Emergency Planning Authority v Halcrow Gilbert Associates.61
It therefore seems that damages following a failure to review a design are
likely to be relatively small, save for cases where there is damage to other
property.
Conclusions
This paper set out to consider three questions relating to the designer’s duty to
review design.
1. What does the duty to review a design comprise?
There is unlikely to be a duty without a ‘trigger’, such as knowledge of a
structural problem or other reason to doubt the design’s adequacy in hindsight.
Whether failure to even appreciate the existence of a problem could be
sufficient is not conclusively decided. The better view is that it could, given
lack of reasonable care and skill in assessment or omission to assess (Payne v
Setchell62). Following the trigger, the duty is to check the initial design,
correct it if possible and issue any necessary instructions to the contractor for
remedial works. The standard to be met in this further work would be that of
the ordinary competent practitioner. New Islington and Hackney Housing
Association63 contains the most detailed consideration of this aspect.
Following Oxford Architects Partnership,64 it can be stated clearly that a
‘continuing’ duty will almost never exist where the original services
undertaken were limited to design. Services equating to RIBA Work Stages
K-L would be required in order to found the duty. A duty to review design is
separate from the original design obligation; the description of a ‘continuing’
duty may be unhelpful. Breach of the review duty is a separate cause of
action, depending on what the architect has been asked to do.
2. How long does the duty to review a design last?
The duty to review would not continue beyond practical completion, in the
absence of special facts. After that, a trigger event would be required.
The duration of liability (as opposed to duty) is governed by the limitation
legislation. The Oxford Architects Partnership case confirms that the parties
can vary the limitation periods upwards or downwards by agreement, although
very clear express words would be necessary to permit a longer period than is
provided by the statute.
61
62
63
64
London Fire and Emergency Planning Authority v Halcrow Gilbert Associates Ltd
[2007] EWHC 2546, TCC, at para 98 (also (2008) 24 Const LJ 103).
Payne v Setchell, see note 35.
New Islington & Hackney Housing Association, see note 14.
Oxford Architects Partnership, see note 32.
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3. What are the legal consequences of breach of duty to review design in the
sense of damages claimable?
In most cases, where the claim is based on the cost of repair of the defectively
designed item itself, quantum is likely to be small if the duty to review
accrued after the construction work has been completed. That is because the
cost of the work will already have been incurred: see London Fire and
Emergency Planning Authority.65
The position will be different if damages are claimed not merely in respect of
the building itself but also in respect of other property, for example following
a flood or fire caused by a failure to review the design.
Alexander Nissen QC, LLB Hons, FCIArb is a member of Keating
Chambers, London; he is also a contributing editor to Keating on Construction
Contracts and one of the commentators for the Construction Law Reports.
©
Alexander Nissen and the Society of Construction Law 2008.
The views expressed by the author in this paper are his alone, and do not necessarily
represent the views of the Society of Construction Law or the editors. Neither the
author, the Society, nor the editors can accept any liability in respect of any use to
which this paper or any information or views expressed in it may be put, whether
arising through negligence or otherwise.
65
London Fire and Emergency Planning Authority, see note 61.
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