An Inspector Calls-Architect s Inspection Duties

Transcription

1 An Inspector Calls-Architect s Inspection Duties An architect acting as contract administrator under the standard forms of contract has to balance what appear to be the conflicting duties of protecting the interests of his client, the Employer under the Contract, whilst also fairly administering the Contract on behalf of both the Employer and Contractor. Contrary to what many Employers may think, the architect does not supervise the works. Nor does an architect ordinarily act as project manager, unless a specific agreement has been entered into that he should. Normally the duties are of inspection and contract administration. During the inspections, the architect must satisfy him or herself that the works are being carried out in accordance with the contract and with statutory requirements. The architect does not have any power to control the Contractor s operations, but the contract will normally have provision for the architect to issue instructions, including those requiring defective work to be removed and rectified. An issue that often arises is the frequency at which inspections should take place. It is traditional for the frequency to be specified in the architect s contract with the Employer and this will normally be the number of visits the architect has allowed for in its fee. In fact more or less site visits will be required, and although the interval between visits may be specified, it is not always wise to adhere rigidly to such a framework. Architect s Duties in Respect of Inspection The site inspection duties of the architect start with the appointment document. In this respect the RIBA Standard Forms of Appointment are one of the benchmarks, but SFA/99 was criticised because it sought to limit responsibility to that of making regular visits. The new RIBA Standard Agreement 2010: Architect (pack) includes both Conditions and Schedules. The Conditions state under 3.8 that: The Client acknowledges that the Architect does not warrant the competence, performance, work, services, products or solvency of any such Other Persons Also under the Conditions, at clause 3.9: The Client shall hold the contractor appointed to undertake construction works and not the Architect responsible for the management and operational methods necessary for the proper carrying out and completion of the construction works in compliance with the building contract or contracts. These Conditions do not exempt the architect from exercising reasonable skill and care in carrying out the role of Contract Administrator. Traditionally courts have not been very sympathetic to the way in which previous versions of the RIBA standard forms of agreement have sought to limit the architect s liability in this respect and it is likely that will not change with this new version. In the Schedules, under Work Stage K the architect contracts to Making visits to construction works as Designer. The term Designer is defined under the Role Specifications and in respect of site visits this provides:

2 (Where engaged to provide services during the construction stage other than any duties in connection with administration of the building contract), making the appropriate number of visits to the site for: inspection generally of the progress and quality of the Relevant Design as built; approval of such elements of the works as may be specified to be to the reasonable satisfaction of the Designer; obtaining information necessary for the issue of any notice, certificate or instruction by the administrator of the building contract It is not clear how the appropriate number of site visits is to be arrived at, but it appears this clause has been written to take account of recent case law. Case Law The development of case law around the inspection duties of architects has a long history starting with Jameson v Simon 1 in 1899 and culminating in a recent decision in that of Ian McGlinn v Waltham Contractors 2 in This case concerned a large house in Jersey which the Employer considered to be so defective and badly designed that it had to be started again, so he had it demolished, claiming damages of 3.6m. HHJ Coulson provided a number of principles by which architect s duties of inspection should be judged, as follows: PRINCIPLE 1: Citing Corfield and Grant 3 : the frequency and duration of inspections are to be tailored to the nature of the works going on from time to time: it is not enough for the inspecting professional religiously to carry out an inspection of the work either before or after the fortnightly or monthly site meetings, and not otherwise. The dates of such meetings may well have been arranged some time in advance, without any reference to the particular elements of work being progressed on site at the time. Moreover, if inspections are confined to the fortnightly or monthly site meetings, the contractor will know that, at all other times, his work will effectively remain safe from inspection. PRINCIPLE 2: His Honour Judge Coulson went on to state: Depending on the importance of the particular element or stage of the works, the inspecting professional can instruct the contractor not to cover up the relevant elements of the work until they have been inspected if the inspecting officer is carrying out his inspections which are tailored to the nature of the works proceeding on site at any particular time, he will have timed his inspections in such a manner as to avoid affecting the progress of the works. 1 Jameson v Simon (1899) 1 F (Ct of Sess) Ian McGlinn and Waltham Contractors and Huw Thomas Associates and DJ Hartigan and Associates Limited and Wilson Large Partners [2007] EWHC 149 (TCC) 3 Corfield v Grant (1992) 59 B.L.R. 102

3 PRINCIPLE 3: The mere fact that defective work is carried out and covered up between visits will not automatically amount to a defence to an alleged failure on the part of the architect to properly inspect the works. It will depend on a number of factors, including what the architect s reasonable expectations were as to what might be being carried out on site at the time and its importance to the works as a whole. PRINCIPLE 4: If an element of work is important because it is to be repeated throughout the whole or part of the works, the architect must ensure it has inspected that part of the works early on, in order to form a view of the contractor s competence to carry out that part of the works. PRINCIPLE 5: Reasonable examination of the works does not mean the architect has to go into every detail. Citing East Ham Corporation v Bernard Sunley 4, HHJ Coulson considered it was inevitable that some defects would escape the architect s notice. PRINCIPLE 6: Referring to Corfield v Grant, the architect does not guarantee that an inspection will reveal defects or prevent defective work being incorporated into the project. Although the six principles highlighted in McGlinn help to summarise the duties of the architect carrying out inspections, in practical terms they still do not provide a definitive set of guidelines that, if followed, will allow architects to perform those duties in a way that attracts no liability. Put another way, the six principles representing the current state of the law can be said to be: 1. The inspection regime must not simply be based around a pre determined regime of regular site meetings. The traditional approach of stating that inspections might take place at say weekly or fortnightly intervals, particularly if this is always on the same day of the week is no longer sufficient. 2. Inspections must be tailored to the work being carried out. Therefore if a particularly difficult stage of the contract has been reached the inspections could be expected to be more frequent, or timed to coincide with significant construction events. 3. Inspections should be carried out so that the contractor cannot avoid them (random, uninvited inspections). This is particularly important if the contractor has a track record of poor or defective workmanship, or has had a history of covering up work before it could be properly inspected. 4. Inspections must be timed so as to coincide with important aspects or stages of the work. This may require instructions to be issued to stop important work being covered up prior to inspection. This may have important consequences because it could be a source of claims by the contractor for delay if such instructions are given unreasonably. 5. If defective work is covered up between inspections, this may not be a valid defence, depending on the importance of the element and what was being carried out. This means the architect may need to require the contractor to expose work, where there is suspicion it may be defective. Unfortunately, for the most part an architect is unlikely to have this knowledge, unless the contractor has a track record of poor workmanship. 4 East Ham Corporation v. Bernard Sunley & Sons Ltd. [1966] A.C. 407

4 6. Inspections of important or repeated items of work should be made to evaluate the contractor s competence. Inspections need to be carefully timed to coincide with these works and this requires a detailed knowledge of the contractor s programme 7. The architect is obliged to do the above no matter what fee agreement has been reached. This could mean the architect is involved in considerable extra work, especially if the contractor is not competent. The architect does not always have the final say in choosing the contractor, particularly if the Employer is seeking the lowest price. There is therefore perhaps a good argument why architects should negotiate fees for contract administration on a time basis. 8. The architect is not under the same duty to inspect work in relation to other consultants, for example, structural or M&E works, but to ensure co-ordination has been dealt with and to record any obvious errors. Architects will be aware that the boundaries between the works of different disciplines can often be blurred, particularly matters of co ordination. 9. The architect will not be able to rely solely on inspections by a Clerk of Works. This has always been the case, but in my view the evidence of inspections by a Clerk of Works may be very persuasive. 10. The architect should point out areas of defective work to the QS for valuations. This has always been a necessary part of the process of certification. 11. The architect should point out defective work on an ongoing basis to the contractor and prior to snagging/handover. This does not include work in progress which might be considered to be a temporary disconformity. It is not always easy to distinguish what is intended to be completed works and work in progress and in my view the architect should protect its position by at least recording to the temporary disconformity to the contractor and seeking conformation by the contactor that it has been put right. 12. Records should be kept of site visits, and in particular of defective work. Good records are an important aspect of the architect s work and are often overlooked, but can be invaluable sometimes years after the vent when memories have faded. 13. The inspector needs to have sufficient experience. Often a more junior member of the architect s team will be sent to site, perhaps because fees are tight or because it is considered to be good experience. The latter is often the case, but it is important that more senior and experienced staff supervise the visits. Consequences of Latest Developments in Case Law In practical terms some of the above can be difficult to do. The contractor s programme may assist in forward planning inspections but it is often not detailed enough. The RIBA Job Book 2008 anticipates that the architect will prepare an Inspection Plan which identifies when visits should be made, and when checks can be made on tests which the contractor is obliged to make under the contract, including visits by building control. However, on the basis that the architect must carry out a least some random site visits this is unlikely to be enough.

5 For the future I think that architects will need to not only have a regular regime of site visits, some of which will coincide with regular site meetings but also plan other visits at critical stages of the project, based on the contractors programme. Depending on how the contractor is performing it may be necessary to make random visits to check on quality. The architect carrying out the latter may not receive a warm welcome on site and it is possible that the relevant contractor s site staff may not even be present for an unannounced visit, but the recent case law suggests this has to be done if the architect is going to fully protect its position of things do go wrong on site. It is a requirement of the building control monitoring regime that the contractor notifies the officers when certain critical parts of the works are to be carried out and when they are ready for inspection. It is possible to include a similar regime in the contract provisions so that the contractor is obliged to notify the architect before certain critical parts of the work are covered up, or when they are ready for inspection, and that failure to do so could mean the architect is not obliged to certify the works. Given the state of current case law this is something that architects could advise their clients to include in their contracts. It will require the architect to carefully consider the various critical stages of construction, and it is possible that the actual site visit regime can only be established after the contractor is appointed and a programme agreed. However, this can only benefit the Employer and in y view would help protect the architect from possible liability during construction stage Murray Armes Sense Studio Limited This article was the subject of a seminar given to professional indemnity insurers in An abbreviated version of this article was published in Murray Armes is a Chartered Architect, Chartered Arbitrator, Adjudicator, Mediator, Dispute Board Member and Expert Witness. He is the founder and managing director of Sense Studio Limited one of the Uk s leading architectural consultancies specialising in dispute resolution. Murray can be contacted direct at murray@sensestudio.co.uk Sense Studio Limited Aldwych Studios 8th Floor Aldwych House Aldwych London WC2B 4HN Tel: +44 (0)