Architect's Duty of Inspection.

Š Daniel Atkinson 2007 22 April 2007

In Ian McGlinn v Waltham Contractors Ltd [2007] EWHC149(TCC) , His Honour Judge Peter Coulson dealt with a wide range of legal issues. In doing so he examined the Architect's duties of inspection which will be of interest to all architects engaged on building contracts under the modern forms of contract.

The particular building project related to a luxury house called "Maison d'Or" that was built for the multi-millionaire Mr Ian McGlinn in Jersey between January 1999 and December 2001. It sat empty for the next 3 years whilst the alleged deficiencies in its design and construction were investigated by a team of experts and contractors. In 2005 it was completely demolished and not rebuilt. McGlinn's primary case was a claim for damages of Ł3,649,481.34.

McGlinn's case was that Maison d'Or was so badly designed, and so badly built, that he was entitled to demolish it and start again. He claimed damages for breach of contract/negligence against the building contractors, Waltham; the architects, Huw Thomas Associates ("HTA"); the structural, mechanical and electrical engineers, the quantity surveyors and so-called Project Managers.

Coulson J found that the project was not set up in either an appropriate or a conventional way. There was no overall co-ordination of the contract, no ordinary contract documentation and no clear chain of command either on or off-site. There was no lead consultant in the conventional sense. The building project was not therefore conventional in any sense. It could not be assumed that a consultant was responsible for a particular function simply because the obligation was one which a professional of the respective disciplines might usually take on.

There was no claim against HTA in relation to pre-contract advice or the administration of the building contract between the employer McGlinn and the contractor Waltham. The claim against HTA concerned the absence of a specification and the failure to inspect.

There was confusion over HTA's terms of appointment. Coulson J held that the appointment was to carry out the Work Stages identified in a document sent by HTA to McGlinn on 12 August 1997, save where it was clear from the evidence that the services were not required or were to be provided by others. That document was the "Architect's Appointment" documentation first produced by RIBA in 1982 and subsequently updated in 1990. Although superseded at the time by SFA/92 (Standard Form of Agreement for the Appointment of an Architect), the extracts sent were based on the earlier document.

The Absence of a Specification

Work Stage C of the Architect's Appointment required the architect to prepare outline proposals and Work Stage D required the architect to develop a scheme design. Work Stage E required the architect to develop that scheme design and to obtain the client's approval of the type of construction, quality of materials and standard of workmanship to be provided by the contractor. Work Stages F and G required the architect to prepare production information including drawings, schedules and specification of materials and workmanship and to provide information for the Bills of Quantities.

HTA through its regular invoices indicated that it had undertaken all these Work Stages. There was no other professional who could possibly have produced most of these documents. The outline proposal, the scheme design, the detail design, and the preparation, under Work Stages F and G, of drawings, schedules and a specification of materials and workmanship, were all for HTA to produce.

It was held that HTA was obliged to provide a specification in respect of these works and failed to provide such a basic document, which was a major failing on the part of HTA.

Quality Standards

It was clear that the luxury house had to be completed to the highest standard. Mr McGlinn wanted the finishes to have the same look as a luxury yacht, but that did not seem to have been conveyed to the consultants and contractor, and therefore it affected progress and payment.

It was held that HTA's obligation to produce a design and inspection service with the aim of producing a very high quality finished building did not extend to the production of a perfect building.

Coulson J stated that the obligation did not extend to the "boat standard". The evidence before Coulson J was that a perfect standard of interior fitting and finish could only be provided by boat-fitting specialists, not construction contractors. Neither HTA, nor any of the other consultants, had made any such arrangements, which indicated that they did not understand that a perfect standard was required. Such a standard was unusual. It was found that at no time did Mr McGlinn require HTA, DJH or WL to produce or work to the boat standard, as opposed to a very high standard of finish.

There was no specification which set out the high standard. HTA therefore failed to spell out to Waltham the very high standard required by McGlinn. The absence of a specification emphasised the importance of HTA's periodic inspections. They were the only way in practice in which HTA intended to get across to Waltham the standard required.

Design

Coulson J held that HTA was not responsible for the detailed structural design, the detailed M&E design, and the detailed design of the interiors and finishes. They were, however, responsible for the co-ordination of those three aspects of the design with their own work.

If there was a clash between any of those three aspects of the design, and HTA's own design work, then HTA had both to point out the clash and, perhaps in conjunction with the other professional involved, they had to endeavour to find a way to resolve it. This task was particularly important in relation to the interiors/finishes. They were obliged to carry out their own design work, and their co-ordination role, exercising reasonable skill and care.

The Principles of Law on the Obligation to Periodically Inspect

Coulson J referred to Sutcliffe v Chippendale & Edmondson [1971] 18 BLR 149 in relation to an architect's obligations to his client once work started and particularly the obligation to supervise. He observed that the obligation to supervise under the old RIBA forms had now gone under modern forms and there was only the obligation to make periodic inspections He reviewed the sparse caselaw and provided a summary of the applicable principles.

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 [1992] 29ConLR58. It was 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.
Depending on the importance of the particular element or stage of the works, the inspecting professional could instruct the contractor not to cover up the relevant elements of the work until they had been inspected: see Florida Hotels Pty Ltd v Mayo [1965] 113 C.L.R. 588. If the inspecting officer was carrying out inspections which were 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.
The mere fact that defective work is carried out and covered up between inspections will not 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 & Edmondson [1971] 18 BLR 149.
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 Holdings Ltd v Multi Design Consultants Ltd [1998]ConLR85.
Reasonable examination of the works did not require the inspector to go into every matter in detail; inevitably some defects would escape his notice: see East Ham Corporation v Bernard Sunley [1966] AC 406.
The architect does not guarantee that his inspection will reveal or prevent all defective work: see Corfield v Grant [1992] 29ConLR58. It was not appropriate to judge an architect's performance by the result achieved.

Applications of the Principles

Coulson J applied the above principles generally to HTA's performance and in addition to specific alleged defects to establish the extent of any HTA liability. Only the general application is considered here.

It was held that HTA was obliged to inspect the works being constructed to its design in accordance with these principles. In respect of the structural works and the M&E works, HTA's obligation to inspect was more limited. It extended to ensuring that any co-ordination issues had been properly dealt with by Waltham, and it might possibly extend to any very obvious errors in the construction of these elements. HTA did not have the same inspection obligation in respect of a detailed element of the work designed by the engineer, as for an element of the work which they themselves designed. HTA were obliged to carry out periodic inspections in respect of the interior/finishes notwithstanding other consultant's primary design obligations.

As to HTA's administrative functions HTA was obliged to point out to the quantity surveyors, particular elements of defective work, depending on their significance or importance. In the circumstances of this case, walking round the site after the site meeting accompanied by the quantity surveyor pointing out areas of defective work that the contractor was required to put right, was a generally sufficient approach.

Monthly inspections on the same day as the monthly meeting during the critical period of construction of the main structure was insufficient. Monthly visits, telegraphed in advance, was an inadequate performance of the inspection function.

The complete absence of any records by HTA of the inspections identifying the defects and what was to be done was unsatisfactory.

It was a mistake that HTA left the oversee of the project to someone who was not a partner in, nor associate of HTA.

Snagging

Coulson J recognised the usual practice in the UK construction industry for the contractor to hand the building over to the architect for snagging purposes, when a building is nearing completion. The architect then undertakes his own careful inspection of the building and records, in a detailed snagging list, all those items which he considers to be patently incomplete or defective. The contractor is then required to correct all the items on the snagging list. Once the architect is satisfied that all the items on the snagging list have been corrected, then, unless some other event has intervened, the architect will normally issue a certificate of Practical Completion.

Coulson held that if during an inspection prior to handover/snagging, the architect identified defective work he was obliged to point it out to the contractor and require it to be remedied. The reason for this was that if circumstances unexpectedly brought the contract to a premature end before such defects had been remedied and had been accounted for in the interim certificates, there would be a consequential over-payment which might be irrecoverable from the contractor. Also it was better to deal with defective work as the works were progressed, rather than at the end.

Coulson recognised that there would be other matters, particularly concerned with final finishes, which not only could be left until formal handover and snagging, but which it was sensible and productive to leave until that stage. Coulson referred to and adopted the views of Mr Recorder Reese QC in Oval (717) Ltd v Aegon Insurance Co (UK) Ltd [1997] 54ConLR that an employer did not expect initial perfection in on-site performance by all operatives engaged in the works at all times. Temporary disconformities would not constitute either non-performance or non-observance of the terms of the construction contract. Coulson held that if an item has been left incomplete when a contract came prematurely to an end, the question was whether it was something which the contractor (or the architect) might fairly have regarded as work in progress, or whether it was something which should properly have been treated as complete. In some cases it would be counter-productive for the inspecting officer repeatedly to point out purported defects in work that was still in the process of being carried out.

Conclusions

The architect's obligation to inspect is not onerous, but does require the architect to carefully consider the project on which he has been engaged and to change his inspection pattern to take into account the importance of the stage of construction. This is a matter of experience, and such a role of inspection should not be left solely to someone who is not a partner or an associate. Proper records should be kept of the inspections and of the work required to be carried out. Any defects should be taken into account in interim certificates.