Well Built? A Forensic Approach to the Prevention, Diagnosis and Cure of Building Defects

Recently came accross an insightfull book review:

Robert Houghton-Evans’ book on building problems comes on top of a long tradition, despite its almost flippant title, 'Well Built?'. Early texts relating to the subject included Lucretius who said, “soft droppes of rain pierce the hard marble” and the New Testament where the faithful were advised to build on rock in preference to sand.

Fast forward to 1976 when Mr. Eldridge gave more modern advice, listing the principles that can be applied to every construction defect situation. Then in 1989 the P.S.A. widened the scope to include specific problems, in a rather unwieldy tome called Defects in Buildings. The B.R.E.’s Building Elements series, intended to replace Eldridge, applies his principles to actual buildings, examining up to date techniques and materials. This technological approach is complimented by publications on professional practice and by case law, so putting it simply, there are three streams of writing on the subject of building defects: Science, Law and Practice. However until now there has been nothing specifically to engage or encourage busy people involved in creating or maintaining buildings, who unexpectedly find themselves involved in a defects dispute and heading towards their solicitor for advice.

Well Built? was commissioned by the RIBA to bridge this gap between practice, technology and law. The book begins with the question implicit in the title, the intricacies of which are confidently probed, illustrated and explained in a readable format using case studies, photographs and even cartoons. Distinct chapter titles guide the reader to the area they need, the three chapters on errors before, during and after construction are particularly useful.

Previous books trod the paths of the design and technological aspects of building defects. In ‘Well Built?’ the author looks at these with very experienced eyes and not a little humour, but goes further along the trail, examining the legal and financial implications of a building not being ‘Well Built.’ The legal significance of terms like ‘Damage and Remedy’ are clearly explained and the chapter on ‘Litigation and the Alternatives’ is reassuring. The role of the Expert has a chapter all to itself, this is a particular area of the author’s expertise.

Robert W. Houghton-Evans began working with buildings in his teens, accompanying his architect father and assisting in an architects’ practice in Leeds. He trained at the Architectural Association in London and worked on Milton Keynes new town and in top private practices, transferring many of his skills to the field of building defects. By the time the RIBA commissioned him to write this book Robert had become an acknowledged authority in the field.

Reviewing Well Built for the Institute of Structural Engineers, Nick Huband recommends the book as suitable for “any member of a design team whether as a recent graduate or as a more senior practitioner carrying out a forensic investigation with the prospect of litigation in mind.” Here Huband acknowledges the author’s aim to produce a book which allows any person who finds themselves involved in a building dispute to get an oversight on how to approach technical problems and understand the legal implications.

Well Built is written in clear enough language for an interested lay person to find it helpful and it could also be a useful teaching aid. In three hundred odd pages no book could give the most detailed technical or legal study of every construction problem, but ‘Well Built’ very successfully gives a handle on most. The author even future-proofs his text with the advice that, in an ever changing industry, the construction professional should never assume that what was good enough yesterday will be satisfactory tomorrow.

Architect Vindicated

It is natural to help your friends and neighbours without setting out written terms and confirming everything done in writing. In this case, it cost the good neighbour substantial legal fees, time and distress for which complete vindication in court and the award of indemnity costs does not adequately compensate.

As an expert witness in a long running claim against as architect, I have witnessed what, in my experience, is one of the most vexatious and convoluted construction litigations of recent times.  In 2013 an architect gratuitously assisted a couple who she knew as friends.  The 'friends' fell out and sought to blame all involved, eventually resorting to claim against the architect for negligence in contract and tort.

The case was heard in 4 courts in succession. The first was in the TCC where a breach of contract claim was dismissed but a duty of care in tort was upheld. This judgement allowed that a tortious duty of care could embrace both acts of commission and of omission. At appeal, the judgement was qualified to exclude liability in tort for acts of omission.

The claim was largely based on assertions that the defendant was negligent for not doing things that were promised or which an architect ought to have done.  By thus qualifying the 1st judgement, the Court of Appeal removed the basis for pursuing the claims in negligence for what the defendant did not do. Nonetheless, claims of negligent omissions were, with some rephrasing, maintained.

For example, the claimants originally said there was no fault in the defendant’s drawings but that she was negligent for not producing technical drawings. They then rephrased the claim averring the drawings were technical drawings and as such were defective in that they lacked construction details.

A similar reversal was in the budget argument. Originally the claimants denied being told the budget was £130,000 and that, had they been told this, they would not have proceeded. The first court found it evident that they were advised more than once of the budget. In response they changed the claim to be that they relied on the advice that the budget was £130,000 and that this was a negligent underestimate of cost.

The dispute returned to the TCC where the claim was dismissed after some 6 days of examining lay and expert witnesses. Cost were awarded to the defendant on the standard basis which award was appealed.  Presiding over the appeal court, Lord Justice Coulson noted the claim had “echoes of the bad old days” when construction litigation “was a byword for expense and delay, and where the costs were often out of all proportion to the sums at stake”. On 6 February 2020, the Court of Appeal handed down its judgment in favour of the architect, concluding that the architect ought to be awarded indemnity costs because (i) the claimants advanced speculative/weak claims; and/or (ii) they unreasonably refused to accept a Part 36 offer which was made early in the proceedings which they subsequently failed to beat.

The effect of an order requiring payment of costs on the indemnity basis is to disapply the requirement that, in addition to costs being reasonably incurred, they should also be proportionate to the sums and issues at stake in the litigation and that, in the event of the assessment judge having a doubt as to whether or not an item of cost has been incurred reasonably, the benefit of such doubt should go to the receiving rather than the paying party.