England: A guide to claiming against an architect
This Guide explains the key features of bringing a claim against and architect for failing to carry out his duties under English law in general terms. This guide is not a substitute for detailed legal advice. If you would like further explanation of any points in this guide, please contact Stephen Homer, Construction Partner at Ashfords LLP.
What is the architect's role?
An architect is often the first point of contact for anyone wishing to embark on a construction project. The architect will normally work with the client to define the project, consider the site and the client’s budget and prepare an initial project brief following which the architect will prepare initial architectural designs and often advise the client on the appointment of other professionals such as an engineer. The architect will often be involved in assisting the client in obtaining planning permission and thereafter in arranging for designs to be developed sufficiently for a firm price to be agreed with a building contractor and for the contractor to then build the design. The architect will often administer the terms of the building contract between the client and the building contractor.
What can do wrong?
Any construction project is complex, often involving a number of parties, with scope for errors to creep in. Typically these can involve:
- A misunderstanding of the client’s design ambition.
- Overstepping the client’s budget.
- A failure to co-ordinate the designs of the different designers leading to defects.
- Design and workmanship defects.
- Late completion of the project.
What is the arhitect's obligation?
This will depend on what is agreed with the architect and the terms of the architect’s appointment (formal or informal). The appointment should define the scope of the services to be provided by the architect. As a matter of common law an architect is to carry out his agreed obligations with reasonable care and skill. If he does not he will be in breach of contract. The obligation to carry out services with reasonable care and skill may be varied by express terms of the appointment. RIBA forms of appointment of an architect usually exclude certain liabilities on the part of the architect.
In the event of error how do you seek redress?
Claims again architects for breaches of their obligations are unlikely to be straightforward and it is likely that any claimant will need the assistance of a solicitor who is experienced in bringing such claims. Initially the solicitor will seek to understand and investigate the complaint made judged against the obligations the architect has agreed to undertake. This will normally involve a review of the services carried out by an experienced architect expert who can provide a report confirming whether in his opinion the architect has failed to use the standard of reasonable skill and care (or other expressly agreed standard of care) which the architect is required to carry out.
Once the solicitor has obtained an architect’s opinion on whether there has been a failure to use the required standard of care then the solicitor will also look to understand what consequences or additional costs have arisen as a result of a breach of any of the architect’s obligations. The solicitor will help the client reach the point where a detailed letter of claim can be sent to the architect outlining the breaches of obligation and the financial losses which flow from each such breach. Any such letter of claim is likely to be supported by a written report from the independent architect expert witness.
Thereafter it is normal for the architect’s insurers to appoint a law firm to respond to the letter of claim and for the parties to follow a pre-action protocol in an attempt to settle any claim without the need to issue formal proceedings. In the event that an amicable settlement cannot be reached then advice will be provided to the client as to the most appropriate form of dispute resolution whether by way of Court proceedings, arbitration or adjudication together with consideration of methods of alternative dispute resolution such as mediation. The solicitor will ensure that the client does not miss statutory limitation dates after which the claimant’s rights to bring a claim against an architect are lost.
In the event that the parties are unable to resolve their dispute by agreement then ultimately the matter would be decided by a tribunal such as a Court, Arbitrator or Adjudicator. They have the power to make monetary awards which are binding on the architect and their insurer. For example, in the case of Riva Properties & Ors v. Foster & Partners EWHC 2574(TCC) in which Ashfords LLP successfully acted for Riva Properties the Court awarded damages of £3.6million against Foster & Partners for failing to design a hotel in accordance with their client’s budget and for subsequently telling their client that the design could be valued engineered down to that budget following planning permission. The claimant was successful in recovering the professional and other fees and expenses incurred in pursuing the design for that scheme as damages for breach of contract.
Of course the aim of any claim is to negotiate an agreed settlement either prior to or at an early stage of formal proceedings and in our experience, provided the claim is prepared properly, this is the most usual outcome.
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