The designer’s duty – time for review

1. The designer’s duty – time for review Alexander Nissen Q.C. LL.B Hons FCI.Arb Keating Chambers

2. 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?

3. 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)

4. 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.”

5. 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

6. 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 doing.”

7. 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.”

8. 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.

9. 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.

10. 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.”

11. Ramsey J inOxford 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.”

12. 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.”

13. 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.”

14. “.. 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

15. 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.”

16. 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

17. 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.