The designer’s duty
– time for review
Alexander Nissen Q.C. LL.B Hons FCI.Arb
Keating Chambers 1
Issues for consideration are:
1) What does the duty to review a
design comprise?
2) How long does the duty to review a
design last?
3) What damages are recoverable for
a failure to review a design?
2
Brickfield v Newton
[1971] 1 WLR 862
“.. the architect is under a duty to check
that his design will work in practice and to
correct any errors which may emerge. It
savours of the ridiculous for the architect
to be able to say, as it was here suggested
that he could say, ‘True my design was
faulty but, of course I saw to it that the
contractors followed it faithfully’ and be
enabled on that ground to succeed in the
action..” (per Sachs LJ) 3
EDAC v William Moss
(1984) 2 Con LR 1
“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 progressed and
to correct it if necessary.” 4
CHRONOLOGY
1990 Architect appointed
1991 Assume design prepared
Jan 1992 Practical Completion
Feb 1992 Occupation of flats
Sept 1992 Noise complaints
Dec 1992 Exchange of letters
Mar 1994 Enforcement notice
Jun 1994 Problem identified
May 1998 Writ issued
5
Dyson J in
New Islington & Hackney Housing
Association Ltd v Pollard Thomas and
Edwards Ltd [2001] BLR 74
“.. a designer who also supervises or inspects work
will generally be advised to review that design up
until that design has been included in the work…
in a number of cases, it has been held that this
duty continues until practical completion.”
“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 6
doing.”
Dyson J in
New Islington & Hackney
“.. in what sense and to what extent is the architect
under a duty to review his 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 design of the foundations
unless something occurs to make it necessary, or
at least prudent, for a reasonably competent
architect to do so.”
7
Letter sent to PTE on 1 December 1992:
RE: 40 Grenville Road
I have recently taken over the above scheme from Philip
Browne. I have had a request, from our Housing Support-
Project Manager, to enquire about the sound insulation
used at the above scheme. There has been a complaint
from the tenants about the noise disturbance (ie conducted
conversations in one flat being heard in next flat.) Could
you clarify the following points:
1) Which sound insulation product was used?
2) Was the sound insulation laid in accordance to Building
Regulations?
I look forward to hearing from you.
8
Reply sent from PTE on 3 December 1992:
40 GRENVILLE ROAD, N19
With regard to your query concerning the sound insulation
used on the above project, I confirm the following:
1) Sound insulation to compartment floor: 48mm Alpha
DBK Ltd "Sound Floor Plus" bonded insulation quilt to t & g
chipboard laid on floor boards. 100mm Rockwool insulation
quilt laid between joists: 30mm plasterboard and set to
ceiling.
2) The insulation specified, as above, was part of the Full
Plan Building Regulations approval received and was
subject to the normal site inspections carried out by the
District Surveyor.
I trust the above information is satisfactory but if you
require anything further, please contact me.
9
Article 5 of the RIBA Conditions of
Engagement used:
“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 the building projects Stages K-L are
provided by the Architect, from the date of
Practical Completion of the Project.”
10
Ramsey J in
Oxford Architects Partnership v Cheltenham
Ladies College [2007] BLR 293
“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 the architect under Stages F
to G ‘prepares production drawings’ or under Stage J
‘provides production information’ … a cause of action will
then accrue based upon that breach of contract.”
However, the “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 accrue on different dates.” 11
Keating 8th edition:
Paragraph 13-083
“The duty to review the design only arises when
something occurs to put the architect on notice
that, as a reasonably competent architect, he
ought to review the design.”
“The duty continues to completion and may
continue to the issue of a final certificate
although this is likely to depend on the architect’s
conditions of engagement read with the
construction contract and the action which the
architect should take may vary according to the
time when the error is discovered.”
12
Keating 8th edition supplement – a sneak peak!
“The continuing duty does not, however,
give rise to a single and continually
accruing cause of action. Rather, a
different cause of action accrues at various
stages…The causes of action will therefore
accrue on different dates.”
“It is thought that, when the RIBA Standard
Conditions of Appointment are
incorporated, causes of action can accrue
from time to time as various duties are, or
should have been performed.” 13
“.. 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.”
Nissen, Construction Law Journal
14
Jackson & Powell, approved in London Fire
and Emergency v Halcrow Gilbert
“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.”
15
CONCLUSIONS
Duty
Ongoing involvement beyond design
stage
Separate cause of action
Not beyond Practical Completion,
absent special facts
Limitation Act applies, subject to
agreed variation
16
CONCLUSIONS cont’d……
Trigger - Yes
- Is actual
knowledge required?
Probably not.
Damages - The loss flowing
from the failure to
review, not from the
originally
defective design. 17
