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The designer’s duty The designer’s duty – time for review– time for review

Alexander Nissen Q.C. LL.B Hons FCI.ArbAlexander Nissen Q.C. LL.B Hons FCI.Arb

Keating ChambersKeating Chambers

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Issues for consideration are:Issues for consideration are:

1)1) What does the duty to review a What does the duty to review a design comprise? design comprise?

2)2) How long does the duty to review a How long does the duty to review a design last?design last?

3)3) What damages are recoverable for What damages are recoverable for a failure to review a design?a failure to review a design?

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Brickfield v Newton Brickfield v Newton [1971] 1 WLR 862[1971] 1 WLR 862

““.. the architect is under a duty to check that .. the architect is under a duty to check that his design will work in practice and to his design will work in practice and to correct any errors which may emerge. It correct any errors which may emerge. It savours of the ridiculous for the architect savours of the ridiculous for the architect to be able to say, as it was here suggested to be able to say, as it was here suggested that he could say, ‘True my design was that he could say, ‘True my design was faulty but, of course I saw to it that the faulty but, of course I saw to it that the contractors followed it faithfully’ and be contractors followed it faithfully’ and be enabled on that ground to succeed in the enabled on that ground to succeed in the action..” action..” (per Sachs LJ)(per Sachs LJ)

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EDAC v William MossEDAC v William Moss (1984) 2 Con LR 1 (1984) 2 Con LR 1

““Morgan’s obligation to design Morgan’s obligation to design International House was not, I think, International House was not, I think, a once and for all obligation, a once and for all obligation, performed when a complete set of performed when a complete set of working drawings, which included working drawings, which included Alpine’s was sent to Moss [the main Alpine’s was sent to Moss [the main contractor]. Morgan had both the contractor]. Morgan had both the right and the duty to check their right and the duty to check their initial design as work progressed and initial design as work progressed and to correct it if necessary.” to correct it if necessary.”

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CHRONOLOGYCHRONOLOGY

19901990 Architect appointedArchitect appointed 19911991 Assume design preparedAssume design prepared JanJan 1992 1992 Practical CompletionPractical Completion Feb 1992Feb 1992 Occupation of flatsOccupation of flats Sept 1992Sept 1992 Noise complaintsNoise complaints Dec 1992Dec 1992 Exchange of lettersExchange of letters Mar 1994Mar 1994 Enforcement noticeEnforcement notice Jun 1994Jun 1994 Problem identifiedProblem identified May 1998May 1998 Writ issuedWrit issued

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Dyson J in Dyson J in New Islington & Hackney Housing New Islington & Hackney Housing

Association Ltd v Pollard Thomas and Association Ltd v Pollard Thomas and Edwards LtdEdwards Ltd [2001] BLR 74 [2001] BLR 74

““.. a designer who also supervises or inspects work .. a designer who also supervises or inspects work will generally be advised to review that design up will generally be advised to review that design up until that design has been included in the work… until that design has been included in the work… in a number of cases, it has been held that this in a number of cases, it has been held that this duty continues until practical completion.”duty continues until practical completion.”

““Sachs LJ was not concerned to explore the Sachs LJ was not concerned to explore the scopescope of of an architect’s continuing duty to review his an architect’s continuing duty to review his design. In my judgment, the duty does not design. In my judgment, the duty does not require the architect to review any particular require the architect to review any particular aspect of the design that he has already aspect of the design that he has already completed unless he has good reasons for so completed unless he has good reasons for so doing.”doing.”

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Dyson J in Dyson J in New Islington & HackneyNew Islington & Hackney

““.. in what sense and to what extent is the architect .. in what sense and to what extent is the architect under a duty to review his design once the under a duty to review his design once the foundations have been designed and foundations have been designed and constructed? In my view, in the absence of an constructed? In my view, in the absence of an express term or express instructions, he is not express term or express instructions, he is not under a duty specifically to review design of the under a duty specifically to review design of the foundations unless something occurs to make it foundations unless something occurs to make it necessary, or at least prudent, for a reasonably necessary, or at least prudent, for a reasonably competent architect to do so.” competent architect to do so.”

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Letter sent to PTE on 1 December 1992:Letter sent to PTE on 1 December 1992:

RE: 40 Grenville Road RE: 40 Grenville Road 

I have recently taken over the above scheme from Philip I have recently taken over the above scheme from Philip Browne. I have had a request, from our Housing Support-Browne. I have had a request, from our Housing Support-Project Manager, to enquire about the sound insulation Project Manager, to enquire about the sound insulation used at the above scheme. There has been a complaint used at the above scheme. There has been a complaint from the tenants about the noise disturbance (ie conducted from the tenants about the noise disturbance (ie conducted conversations in one flat being heard in next flat.) Could conversations in one flat being heard in next flat.) Could you clarify the following points:you clarify the following points:

1) Which sound insulation product was used?1) Which sound insulation product was used?

2) Was the sound insulation laid in accordance to Building 2) Was the sound insulation laid in accordance to Building Regulations?Regulations?

I look forward to hearing from you.I look forward to hearing from you.

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Reply sent from PTE on 3 December 1992:Reply sent from PTE on 3 December 1992:

40 GRENVILLE ROAD, N1940 GRENVILLE ROAD, N19With regard to your query concerning the sound insulation With regard to your query concerning the sound insulation

used on the above project, I confirm the following:used on the above project, I confirm the following:

1) Sound insulation to compartment floor: 48mm Alpha DBK 1) Sound insulation to compartment floor: 48mm Alpha DBK Ltd "Sound Floor Plus" bonded insulation quilt to t & g Ltd "Sound Floor Plus" bonded insulation quilt to t & g chipboard laid on floor boards. 100mm Rockwool insulation chipboard laid on floor boards. 100mm Rockwool insulation quilt laid between joists: 30mm plasterboard and set to quilt laid between joists: 30mm plasterboard and set to ceiling.ceiling.

2) The insulation specified, as above, was part of the Full 2) The insulation specified, as above, was part of the Full Plan Building Regulations approval received and was Plan Building Regulations approval received and was subject to the normal site inspections carried out by the subject to the normal site inspections carried out by the District Surveyor.District Surveyor.

I trust the above information is satisfactory but if you I trust the above information is satisfactory but if you require anything further, please contact me.require anything further, please contact me.

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Article 5 of the RIBA Conditions of Article 5 of the RIBA Conditions of Engagement used:Engagement used:

““No action or proceedings for any breach of this No action or proceedings for any breach of this Agreement or arising out of or in connection with Agreement or arising out of or in connection with all or any of the Services undertaken by the all or any of the Services undertaken by the Architect in or pursuant to this Agreement shall Architect in or pursuant to this Agreement shall be commenced against the Architect after the be commenced against the Architect after the expiry of [six] years from completion of the expiry of [six] years from completion of the Architect’s Services, or, where the Services are Architect’s Services, or, where the Services are specific to the building projects Stages K-L are specific to the building projects Stages K-L are provided by the Architect, from the date of provided by the Architect, from the date of Practical Completion of the Project.”Practical Completion of the Project.”

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Ramsey J inRamsey J inOxford Architects Partnership v Cheltenham Oxford Architects Partnership v Cheltenham

Ladies CollegeLadies College [2007] BLR 293 [2007] BLR 293

““If an architect produces a design which is in breach of the If an architect produces a design which is in breach of the terms of engagement and issues it to the contractor who terms of engagement and issues it to the contractor who constructs the work to that design, then a breach of constructs the work to that design, then a breach of contract will occur when, for the architect under Stages F to contract will occur when, for the architect under Stages F to G ‘prepares production drawings’ or under Stage J ‘provides G ‘prepares production drawings’ or under Stage J ‘provides production information’ … a cause of action will then accrue production information’ … a cause of action will then accrue based upon that breach of contract.”based upon that breach of contract.”

However, the However, the “continuing duty”“continuing duty” would not would not “give rise to a “give rise to a single and continually accruing cause of action. Rather a single and continually accruing cause of action. Rather a different cause of action accrues at various stages. Thus different cause of action accrues at various stages. Thus the cause of action for a failure properly to review the the cause of action for a failure properly to review the design is a different cause of action from a failure to design is a different cause of action from a failure to provide a proper design in the first place. The causes of provide a proper design in the first place. The causes of action will accrue on different dates.”action will accrue on different dates.”

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Keating 8Keating 8thth edition: edition:

Paragraph 13-083Paragraph 13-083““The duty to review the design only arises when The duty to review the design only arises when

something occurs to put the architect on notice something occurs to put the architect on notice that, as a reasonably competent architect, he that, as a reasonably competent architect, he ought to review the design.”ought to review the design.”

““The duty continues to completion and may The duty continues to completion and may continue to the issue of a final certificate continue to the issue of a final certificate although this is likely to depend on the architect’s although this is likely to depend on the architect’s conditions of engagement read with the conditions of engagement read with the construction contract and the action which the construction contract and the action which the architect should take may vary according to the architect should take may vary according to the time when the error is discovered.”time when the error is discovered.”

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Keating 8Keating 8thth edition supplement – a sneak peak! edition supplement – a sneak peak!

““The continuing duty does not, however, The continuing duty does not, however, give rise to a single and continually give rise to a single and continually accruing cause of action. Rather, a accruing cause of action. Rather, a different cause of action accrues at different cause of action accrues at various stages…The causes of action will various stages…The causes of action will therefore accrue on different dates.”therefore accrue on different dates.”

““It is thought that, when the RIBA Standard It is thought that, when the RIBA Standard Conditions of Appointment are Conditions of Appointment are incorporated, causes of action can accrue incorporated, causes of action can accrue from time to time as various duties are, or from time to time as various duties are, or should have been performedshould have been performed.”.”

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““.. the damages recoverable from the architect or .. the damages recoverable from the architect or engineer are not those which flow from any engineer are not those which flow from any

original error in design, but from the failure to original error in design, but from the failure to review the design. Such damages are likely to be review the design. Such damages are likely to be

more limited than appears at first sight.”more limited than appears at first sight.”

Nissen, Construction Law Journal Nissen, Construction Law Journal

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Jackson & Powell, approved in Jackson & Powell, approved in London Fire London Fire and Emergency v Halcrow Gilbertand Emergency v Halcrow Gilbert

““the contractual measure of damages for the contractual measure of damages for failure to review a design where a claim in failure to review a design where a claim in respect of the original design obligations is respect of the original design obligations is statute barred should be such as to put a statute barred should be such as to put a claimant into the position that he would claimant into the position that he would have been in if the design had been have been in if the design had been properly reviewed. Thus, if the failure to properly reviewed. Thus, if the failure to review occurred after practical completion review occurred after practical completion a claimant should be obliged to give credit a claimant should be obliged to give credit for the (possibly substantial) costs which for the (possibly substantial) costs which would have been incurred at that stage in would have been incurred at that stage in correcting the design.”correcting the design.”

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CONCLUSIONSCONCLUSIONS

DutyDuty Ongoing involvement beyond design Ongoing involvement beyond design

stagestage Separate cause of actionSeparate cause of action Not beyond Practical Completion, Not beyond Practical Completion,

absent special factsabsent special facts Limitation Act applies, subject to Limitation Act applies, subject to

agreed variationagreed variation

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CONCLUSIONS cont’d……CONCLUSIONS cont’d……

TriggerTrigger -- YesYes-- Is actual knowledge Is actual knowledge

required?required?Probably not.Probably not.

DamagesDamages -- The loss flowing The loss flowing from from the failure to the failure to review, review, not from the not from the

originally originally defective defective design.design.