McGlinn v Waltham Contractors Ltd [2007] EWHC 149 (TCC) (21 February 2007)
Citation:McGlinn v Waltham Contractors Ltd [2007] EWHC 149 (TCC) (21 February 2007)
Rule of thumb: What is the legal standard expected of architects? An architect has a wide duty of care. They have duties such as ‘general’ – drawing a functional design to meet the budget, and ‘supervision’ – on-site checks at crucial junctures, examination of the works, and involvement in the valuation process. They are not liable for defects if they have done this.
Background facts:
Parties argued:
Judgment:
The Judge in this case made an excellent attempt to sum up the legal duties that are expected of architects, ‘213) The classic statement of the architect's obligations to his client once the works have started on site is set out in the judgment of His Honour Judge Stabb QC, the former Senior Official Referee, inSutcliffe v Chippendale & Edmondson (A Firm) [1971] 18 BLR 149. Although this case went to the Court of Appeal and the House of Lords on a different point, Judge Stabb's analysis of an architect's site–based duties is the appropriate starting-point for any consideration of what supervision and inspection might actually involve. The relevant passages of his judgment are, I think, these: "(a) Generally: It can be said that when a person engages an architect in relation to the building of a house, he is entitled to expect that the architect will perform his duties in such a manner as to safeguard his interests and that he will do all that is reasonably within his power to ensure that the work is properly and expeditiously carried out, so as to achieve the end result as contemplated by the contract. In particular the building owner is entitled to expect his architect so to administer the contract and supervise the work, as to ensure, as far as is reasonably possible, that the quality of work matches up to the standard contemplated. (b) Supervision: The RIBA conditions of engagement state that the architect shall give such periodical supervision and inspection as may be necessary to ensure that the works are being executed in general accordance with the contract, and that constant supervision does not form part of the duties which he undertakes. It has often recently been said that as the architect now frequently has the power by means of final certificate of freeing the contractor from liability for defects, he, the architect, is required to accept a greater responsibility in his supervisory capacity in the detection of defective work during the progress of the contract. Mr Simpson agreed that one reason for supervision was to ensure that the defective work was spotted at an early stage, and indeed noted and subsequently reflected in an interim certificate if not previously remedied. I think that the degree of supervision required of an architect must be governed to some extent by his confidence in the contractor. If and when something occurs which should indicate to him a lack of competence in the contractor, then, in the interests of his employer, the standard of his supervision should be higher. No one suggests that the architect is required to tell a contractor how his work is to be done, nor is the architect responsible for the manner in which the contractor does the work. What his supervisory duty does require of him is to follow the progress of the work and to take steps to see that those works comply with the general requirements of the contract in specification and quality. If he should fail to exercise his professional care and skill in this respect, he would be liable to his employer for any damage attributable to that failure." 214) The Judge went on to consider the question of interim certificates and said: "Furthermore, since everyone agreed that the quality of the work was always the responsibility of the architect and never that of the quantity surveyor and since work properly executed is the work for which a progress payment is being recommended, I think that the architect is in duty bound to notify the quantity surveyor in advance of any work which he, the architect, classifies as not properly executed, so as to give the quantity surveyor the opportunity of excluding it." 215) A number of points need to be made about these passages. First, they are concerned with an architect's obligation to 'supervise and inspect' which is what the old RIBA terms required. The obligation to supervise has now gone; there is now only an obligation to make periodic inspections. That is a potentially important reduction in the scope of an architect's services. Secondly, Judge Stabb's comments assumed, quite reasonably, that the architect would be closely involved in the valuation process. In many modern construction contracts, that is not the case and there can be a blurring of responsibility for interim valuations/certificates as between the architect and the quantity surveyor. That is a dispute in the present case to which I return below. 216) In more recent times, the role of the architect in inspecting the work has been the subject of surprisingly few cases. Corfield v Grant [1992] 29 Con LR 58 was a case concerned with supervision, not inspection. In Consarc Design Ltd v Hutch Investments Ltd [2002] 83 Con LR 36, His Honour Judge Bowsher QC, indicated that the obligation to inspect was somewhat vague and it was difficult to know in real terms what was required, although, as he put it, "what is absolutely clear is that the architect does not guarantee that his inspection will reveal or prevent all defective work". I respectfully agree with that statement. I also respectfully agree with Judge Bowsher's adoption and approval of the relevant passages concerned with inspection in (what is now) the Fifth Edition ofJackson & Powell On Professional Negligence at paragraphs 8-236 to 8-249. 217) In my judgment, perhaps the most helpful recent guidance in respect of the duty to inspect can be found in the judgment of His Honour Judge Hicks QC in George Fischer Holdings Ltd v Multi Design Consultants Ltd [1998] 61 Con LR 85. In that case, the consultant with the inspection obligation had defended himself on the basis that, on the balance of probabilities, he would not have seen the defective joints on the roof being formed and, if he had been there, the workmen would have taken particular care to get those particular joints right. Judge Hicks said: "That defence fails at every level. As to missing the relevant phase of the operation, first, it is clear on the evidence that on visits of the frequency and length which Mr Gardner says he carried out elsewhere on site, and even without any special attention to this point, the likelihood is that he would on many occasions have had the opportunity of seeing lap joints formed and sealed. Secondly, the formation of the joints was so obviously crucial that even if the overall frequency of visits was not increased special attention should have been paid to ensuring that they fully covered this aspect. But thirdly, since this whole discussion predicates the acceptance by DLE of the very risky and inadvisable inclusion of lap joints in such shallow slopes, it was incumbent upon them to exercise the closest and most rigorous inspection and supervision of the process. The last point also disposes of the suggestion that workmen will 'put on a show' – either they cannot do that all the time, or if they do, that achieves the object anyway. Moreover it is in any event part of the necessary skill of a competent inspecting officer to detect and make allowances for such behaviour." 218) In the light of these various authorities, I would summarise the legal principles relating to an architect's obligation to inspect as follows: (a) The frequency and duration of inspections should be tailored to the nature of the works going on at site from time to time: see Corfield v Grant and paragraph 8-240 of Jackson & Powell. Thus it seems to me that 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 site 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. b) 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: see Florida Hotels Pty Ltd v Mayo [1965] 113 C.L.R. 588 and paragraph 8-241 of Jackson & Powell. However, it seems to me that such a situation would be unlikely to arise in most cases because, if the inspecting officer is carrying out 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 those works. c) The mere fact that defective work is carried out and covered up between inspections will not, therefore, automatically amount to a defence to an alleged failure on the part of the architect to carry out proper inspections; that will depend on a variety of matters, including the inspecting officer's reasonable contemplation of what was being carried out on site at the time, the importance of the element of work in question, and the confidence that the architect may have in the contractor's overall competence: see Sutcliffe v Chippendale and paragraph 8-242 of Jackson & Powell. d) If the element of the work is important because it is going to be repeated throughout one significant part of the building, such as the construction of a proprietary product or the achievement of a particular standard of finish to one element of the work common to every room, then the inspecting professional should ensure that he has seen that element of the work in the early course of construction/assembly so as to form a view as to the contractor's ability to carry out that particular task: see George Fischer. That accords with Mr Jowett's evidence in the present case, with which Mr Salisbury agreed. (e) However, even then, reasonable examination of the works does not require the inspector to go into every matter in detail; indeed, it is almost inevitable that some defects will escape his notice: seeEast Ham Corporation v Bernard Sunley [1966] AC 406 and paragraph 8-239 of Jackson & Powell. f) It can sometimes be the case that an employer with a claim for bad workmanship against a contractor makes the same claim automatically against the inspecting officer, on the assumption that, if there is a defect, then the inspector must have been negligent or in breach of contract for missing the defect during construction. That seems to me to be a misconceived approach. The architect does not guarantee that his inspection will reveal or prevent all defective work: see Corfield v Grant. It is not appropriate to judge an architect's performance by the result achieved: see paragraph 8-238 ofJackson & Powell. To that extent, therefore, I agree with the points made in paragraphs 49 and 50 of the written opening prepared by Mr Bartlett QC and Mr Hamilton on behalf of HTA’, Judge Coulson at 215-218
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.