Yorkshire Office Closed

 A recent job for ArchiFACT was an arbitration concerning a site in the Middle East with clients spread over two continents. No site visit was necessary for ArchiFACT, our report was based on evidence provided electronically and emailed to the client.

The Arbitration process itself involved Arbitrators sitting simultaneously in three different time zones, however the hearing itself involved very little travel for us. ArchiFACT’s expert travelled 65 miles by train and taxi from our Head Office in St Leonards-on-Sea to the lawyers offices in the City of London.

The hearing was conducted entirely via multiple video links and the total length of cables running between the pieces of tech in each of the individual offices of the arbitrators, clients, experts and lawyers could well, if placed end-to-end, have been greater than the distance travelled by our expert.

The question arising was, does ArchiFACT, or indeed any company, need separate offices to serve different geographic locations, when almost everything except for site visits could be done sitting at one desk?

Drawing the obvious conclusion, ArchiFACT’s Yorkshire office is now closed. From 30 May 2024 all business is being conducted from our Sussex Office in St Leonards-on-Sea.

We can still be contacted on any matter via email – fact@ArchiFACT.co.uk.

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.

Professional Negligence in Tort – Sods Law or a Landmark Victory

Being accused of negligence is troubling enough but for an architect to be accused of ruining construction when not appointed, and to have done so even when not there, might worry the most confident practitioner.  This inventive claim, concerning a back garden, lead to a landmark case on liability for professional negligence in tort.

Background

At the request of a married couple who were her friends, an architect asked a builder if he could terrace a hilly back garden as shown on a gardener’s drawings.  The architect had offered her services but to avoid professional fees the couple did not agree this offer.  Out of friendship she helped get the work underway without requesting payment. 

The builder began shaping the clay banks.  Shortly thereafter the couple fell out over cost, sacked the builder and, dispensing with the architect, continued the ground works with an unsupervised sub-subcontractor.   With stalwart consistency, the couple then dismissed the sub-subcontractor to be left with incomplete work and much mud.  Taking advice from others, in so far as advice could be procured at no cost, the couple threatened to sue in turn, the contractor, the sub-contractor, the sub-sub-contractor and finally the architect.  This last they did.  

Preliminary Hearing

A trial of preliminary issues was held with the following results:  Because of ambiguity and lack of consideration, the architect was not under contract.  Her role was sufficiently akin to a professional relationship for the court to affirm her common law duty of acting with reasonable skill and care.  The judgement was expressed in such a way that an architect’s liability in tort appeared to be no less than that which would exist under a contract for the provision of professional services.  Thus, an architect could be liable under tort for failing to perform services which she had not contracted to provide and for which she was not paid.  This was appealed.

Appeal

The appellant court clarified this judgement as follows: there was no duty to design, budget or inspect.  Insofar as she did perform a professional service, her duty was to do this with reasonable skill and care.   Liability, if any, therefore turned on the facts and the matter returned to the TCC for a full hearing.

Global claim and pure economic loss

The couple’s case included a global claim and pure economic loss.  The courts cautioned against the global claim but allowed it to be heard.  The appeal court confirmed liability in tort could extend to pure economic loss where a professional service, for which responsibility has been assumed, is performed negligently.  Say the architect had intervened while supervising the work and negligently directed the construction with the consequence that it failed causing economic loss, then there would be a clear case of liability.  

Lack of clarity

Undeterred by adverse judgements and mere logic, the claimants confused what was done before and after dismissing the architect, and blamed her for every supposed defect, positing that her absence was as detrimental as was her presence and that she was the root cause of all their woes. This muddying of the case proved unhelpful in court.

Final Hearing

The claim was divided into two parts: i) defective construction and 2) deviations from the design.  The defendant was accused of negligence in: project management, design, supervision, budgeting and cost control.  

Much of the evidence of defects in the claimants’ statement of case was based on the opinions of a builder, a surveyor and an engineer, none of whom they called to give evidence in court.  The claimants’ architect expert had not seen the work.  I had inspected the work.   I could advise the court from direct observation that that part of it, which was done while the architect was involved, was acceptable.  Deviation from the design occurred only where errors in the garden designer’s drawing made this unavoidable.  I could not say the same of the subsequent work which was clearly of a different standard.

The judge recognised that the architect’s involvement was terminated when the wife found out that the budget was higher than her husband had told her and not because of any perceived fault in the works.  The husband denied agreeing a higher budget than known to his wife and claimed the architect had not given him this budget and that if she had he would not have proceeded.  This assertion was dismissed at the 1^st hearing.  The claimants then decided not only to accept they knew the budget but claimed that they had relied on it.  Their claim evolved to include an assertion that the budget produced by the architect was unachievably low and negligently prepared.  They felt they had been seduced into a project which, had they known the real cost, they would not have started.  As a consequence, they argued, the whole of their losses arose out of the architect’s negligent pricing.  

The judge noted both the inconsistencies between the claimants’ evidence and contemporaneous documents and the inconsistencies in the history of the claim which changed after each hearing to circumvent adverse rulings.  He condemned the scatter gun approach to the claim and its lack of clarity.  The claim failed on every point but may have succeeded in doing what the judge astutely noted as; “To pursue this claim suggests that the Claimants seek to punish the Defendant for her alleged negligent mistakes rather than seek fair and reasonable compensation …”.  Being dragged through 5 years of vexatious litigation is punishing. 

The unsubstantiated claims of unsafe work evoked images of imminent landslip threatening to bury the claimants in their house.  The result was a landslide victory for the defendant.  The garden is finished but, with 5 years of litigation, at what cost?

In an age when architects no longer coordinate designs and builders no longer accept responsibility for the building, how do you make sure a building is weatherproof?

From the outset of my career as an architect, I found it regarded as a normal and essential part of the architect’s role to coordinate the design team and integrate architectural, engineering and specialist designs into a working whole.  More recently, as a forensic architect, I find troubled projects where the project architect’s role is diminished, leaving no member of the design team with overall responsibility to coordinate the team and check the compatibility of each specialists’ contribution to the design.  This was brought out recently in a design and build project which leaks.  The general contractor blamed separately: the architect, the brick laying sub-contractor and the curtain walling sub-contractor for the failure.

The main contractor entered a contract under which it was responsible for design, supply and build and then subcontracted all of the work.  When the finished building leaked, the contractor took the stance that, as it had not in fact designed or built anything, it must be blameless and fault must lie with its consultants and subcontractors.  

The architect sought to distance himself from the problem.  As is typical under a design and build contract, the architect was given a limited brief and even more limited fee.  Accordingly the architect stated; ‘We do not approve drawings, we only provide the design intent and a visual concept, along with our understanding of how things go together’.  Despite the usual mishmash of project managers, coordinators, etc. no one had been charged with the task of checking the compatibility of each consultants’ and specialists’ designs with each other.

Without establishing the causes of the leaks, the general contractor withheld money from all whose work might be at fault. 

How does rain penetrate a masonry walls?

By their nature, masonry walls are not waterproof.  The specification, design, detailing and construction of walls should be tailored to local weather conditions.   The likely severity of rain driving through masonry can be assessed from the wall spell index[1] - the more severe the exposure, the more vital the correct detailing.  Particularly important is the detailing of d.p.c.’s, joints and junctions.

D.p.c.’s have limited ability to bond to mortar and, especially if dry bedded, may form continuous capillaries to draw water in. Even without d.p.c.’s, water may enter through the microscopic labyrinth of voids at mortar to masonry junctions and through movement cracks.  Inappropriate detailing, such as recessed mortar joints, can further worsen performance.

Even well designed and built masonry walls may leak if connected to poor roof details.  Parapets, poorly jointed copings and the lack of overhangs, drips and d.p.c.’s commonly let water into walls but may go unnoticed until emerging it manifests itself as damage.

Where does the water go?

Once water has entered masonry walls, it may spread unseen and reappear as leaks, typically at places where the masonry construction is interrupted, such as: floors, doors, windows, etc. 

This is a common problem in cavity walls.  Good practice is to design on the basis that water will penetrate the outer leaf of cavity walls and run down the wall cavities.  To prevent damage, weep holes and cavity trays are customarily installed to drain water harmlessly to the outside. 

Careful detailing is required to prevent water damage where the masonry is interrupted.  Water running through masonry and wall cavities may not be noticed until it flows onto lintels, window heads, etc. and causes visible damage.  This often leads too readily to the assumption that glazing systems are faulty or incorrectly installed as this is where the water damage is seen.    With good design and supervision, glazing and masonry can be combined without problems but when it does go wrong, informed inspection and simple testing can reveal the causes of water damage, allowing effective repair and the correct apportionment of blame.

Getting it right

Successful teamwork is engendered by good planning and management with clearly allocated responsibilities and effective communication.  Empowering skilled designers and tradesmen to work well as a team requires leadership, organization, proper funding and timely payments.   Designs should be well prepared in advance and developed in work as required.  This happens when tradesmen and professionals develop mutual respect and have the resources to work together as and when needed.

Sometimes each trade, specialist, contractor, etc. is left to decipher what is wanted from the contract documents and what they find when it’s their turn on site.  Cost cutting jeopardizes supervision, inspection and design leadership.  Most have, of necessity, developed practical ways of handling the problems arising and produce good work despite the difficulties.  Occasionally the problems can seem intractable. When this happens, independent experts can help.   We can be contacted anytime at fact@ArchiFACT.co.uk or via voicemail on 01484 515701.

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[1] BS 8104 Code of practice for assessing exposure of walls to wind-driven

Knowledge is what you get from reading the contract. Experience is what you get from not reading it

Many disputes arise because one or other of the parties to a written agreement assumed, rather than read, its contents.  Such disputes can be ruinous where the parties delay taking good advice.

In a recent arbitration, almost 12 years after completion of a new-build, low-rise block containing flats, shops and communal facilities, a developer claimed against his builder for water damage.  The developer particularised the claim in terms of design defects with a few sweep-up allegations of poor workmanship.  The remedial scheme commissioned by the developer involved a redesign of that part of the building alleged to be at fault.  The developer sought compensation from the builder for the full cost of the remedial works.

The builder confidently rejected liability for the cost of correcting design flaws as the design was produced by the developer’s chosen architect whose design the builder had been obliged to accept.  

While the builder correctly understood how the design work had been undertaken, insufficient attention had been paid to the peculiar split between design liability and design duty under the building contract.  The builder had entered a modified JCT design and build contract.  This made the builder liable for negligent design while requiring the builder to engage the developer’s architect, to implement the architect’s design and not to alter the architect’s design.  Thus the builder had, under the express terms of the contract, liability for a design over which he had no control.  

The design, as evidenced by the drawings, was completed more than 12 years before the action was brought.  Practical completion was less than 12 years before the action was commenced.  The developer held that, as a builder’s duty continued until practical completion, the action was not statute barred.  The builder disagreed, holding that if the action was statute barred against the architect, insofar as the claim was for deficiencies in the architect’s design, it must also be statute barred against the builder.   The developer also argued that there was an implied continuing duty to review the design during inspections.  However the building contract did not include a requirement for, and the architect was not engaged to carry out, routine periodic architectural inspections during the works.

From the outset, reports by the project insurer’s surveyor, the occupant’s surveyor and the developer’s surveyor informed the legal proceedings and formed the basis for the remedial work, which was completed earlier this year.  It was while the case was approaching a hearing and after the remedial work was complete that I was invited to prepare expert evidence and still later that the developer obtained an expert report. 

I reported that the design was flawed (but not as the developer asserted) and that the developer’s remedial scheme was similarly flawed.   The developer’s expert advised revising the developer’s case and the builder, on receipt of the developer’s expert’s report, stated that it raised issues other than those pleaded and applied to have much of it struck out unless the claim were revised.  Such a late fundamental revision to the Statement of Case may have exposed the developer to a claim for abortive costs and the developer eschewed this advice and resisted the application.   The arbitrator was minded to allow the claimant’s expert evidence on the basis he could properly ignore any part of it which did not go to the pleaded issues.

Both parties, now close to a hearing, were in possession of expert evidence which put into question the validity of the claim as pleaded but which showed there was, subject to the Statute of Limitations, a viable claim.   The developer’s costs already exceeded the sum claimed and the anticipated costs to go to a full hearing would make the parties’ costs greatly exceed the sum in dispute.  The result was a compromise settlement within a couple of weeks of the experts’ meeting.  Regrettably, due to the legal costs incurred, the settlement left both parties out of pocket by more than the sum claimed.  A high price to pay for the experienced gained.  An earlier reading of the contract documents and appointment of experts could have brought the dispute to a cheaper, quicker and more effective resolution.

Ineffective legal remedy for Building Defects

Applying the basic principles of English contract law, if building work is defective due to a breach of contract, the remedy is the cost of correcting the defects. 

Another approach is to retain the defective work as built and make an equitable deduction in payments to the builder.  Deductions might be based on whichever of the following is applicable: the savings made by the builder’s not having to correct the work, the loss of value in the finished building caused by retaining the defects, the lower cost of building poorly, the foreseeable increased cost of building maintenance, loss of longevity, etc.

The courts have in most cases based remedies on the cost of correction or of diminution in value.  There are exceptions where the courts have awarded nominal damages only.  This has occurred where the defects caused loss of amenity for the owner’s personal preferences.  The case of Ruxlev Electronics and Construction Ltd. v. Forsyth is often cited in this connection.

In a more recent case the courts awarded nominal damages for a failure to build a garage to the specified dimensions.  While the logic by which the courts held that nominal damages were an appropriate remedy can be distinguished from Ruxley, the effect is the same in so far as it makes it uncertain that a contract requiring building work to be done precisely as drawn and specified can be enforced effectively.  Where does this leave building professionals who advise on and prepare building contracts?  Do we have to say to our clients, if you enter a building contract based on agreed drawings and specifications, you may have to put up with a deficient building or pay twice?

The incidence of different types of defects

In the most general sense, a satisfactory building is one which is where it is needed, fits appropriately into its surroundings, and provides adequate space and facilities, protected from adverse weather and other undesirable external conditions. Since this protection cannot readily be achieved with short-lived structures, buildings typically outlast many other modern products, and, if built so that they can be adapted to changing requirements and easily repaired, can give satisfactory service for a long time.
Much can be learnt from the condition of the existing building stock about what mostly causes dissatisfaction after completion.
Existing buildings in Britain number about 25 million. Most are dwellings, which in 2000 numbered about 23 million – well over 90 per cent of the total, but it is estimated that in terms of floor area, domestic and non-domestic buildings are roughly equal.
At the beginning of the 20th century there was, in Britain, one dwelling for every 2.6 persons – slightly above the size of today’s dwindling average household. Population growth is now slow overall, and current demand for building arises largely from changes in household composition and inter-regional migration. The annual rate at which new dwellings were being completed in 2000 had fallen to well under 200,000, compared with more than double that figure in the mid 1960s.
Consequently, for English houses as a whole, recent official figures indicate that more than one fifth are over 80 years old, and around half are 50 years old. There are no comparable statistics for non-residential buildings.

In spite of their age, most existing buildings are still fit for continued use. Government statistics for dwellings officially designate as unfit less than 5 per cent of the total (i.e. 885,000 unfit dwellings). The most common reason for unfitness is disrepair (46%), followed by facilities for the preparation and cooking of food and dampness. Externally, faults occur most commonly in roof features and rainwater goods (34%), exterior wall finish (26%) and windows (25%). Internally faults are most common in ceilings (22%). This is an increase in the number of houses which are in disrepair when compared to the previous year’s survey.

Sustainable Solutions for Old Windows

Plastic windows are often put into older buildings, to ‘upgrade’ wooden windows, though the pvc-U they are manufactured from gives them an expected lifespan of not much more than 30 years. They may provide improvement in insulation via double-glazing and improved draft-proofing and so are often viewed as the sustainable solution. This is potentially belied by the reduction in light transmission, pvc-U window’s limited lifespan and the carbon footprint created in their manufacture.  Pvc-U can now be recycled and one major manufacturer recycles up to 90% of old pvc-U windows, including the glass, though even this process has a carbon footprint in the energy used to re-create the window parts.

Listed historic buildings cannot be sympathetically re-fitted with modern plastic windows and the appearance of many otherwise handsome, though non-listed, older buildings has been spoilt by the addition of carelessly chosen replacement windows. The making, rebuilding and repairing of sliding sash windows has merit.

Wooden window frames and sashes of whatever age can be easily repaired if they have not been allowed to rot, though sliding sash windows in particular are often seen by the inexperienced as more trouble than they are worth to restore.  However weights, cords, pulleys and other traditional sliding sash accessories are readily available and slender, pre-manufactured double glazing units can sometimes be used to replace original Victorian glass, which was often especially thick in larger windows. An expertly restored wooden sliding sash should be no harder to open and close than a UPVC replacement.

Good timber is durable, if taken care of it will last for centuries, though it does require periodic maintenance involving paint and repair. Paint too has a carbon footprint, though modern non-volatile paints are improving all the time. Pvc-u is low-maintenance but cannot be repaired as easily, so its longevity is not as good and older plastic windows may suffer permanent discolouration from exposure to sunlight. They can also become stained, mildewed and bird droppings are reportedly particular problems.

Early steel windows, manufactured prior to the introduction of rustproofing treatments at the end of the 1930’s also require additional maintenance. Wartime painting was often neglected and rust allowed to set in, often unseen beneath the putty in the glazing rebates. Cracked glass, provoked by compression from the building up of corrosion products, is a sure sign.

Such windows are often worth conserving and may be put back in good order. Careful removal of glass and putty, followed by grinding off rust to bright metal and the application of a good zinc based primer is essential, before re-glazing and painting.

When extensive conservation work is required, involving the repair or replacement of hardware, the dismantling of composite assemblies, or the piecing in of replacement bars, it may be worth having the windows taken out, removed to a workshop, stripped down and hot dip galvanized before re-assembly.

Le tour racing towards ArchiFACT

 

Alternative (Construction) Dispute Resolution (ADR)

The term ‘alternative dispute resolution’ might originally have been applied to any method of resolving disputes other than litigation. Language changes and ADR is now commonly used to describe alternatives to any imposed, externally-regulated and binding system of resolving disputes.

It may mimic processes such as courtroom trials or arbitration hearings, or adopt wholly dissimilar procedures. There are formal protocols or codes of conduct available which can be followed if wished. (Guidance on this may be obtained from various bodies, of which the Centre for Effective Dispute Resolution, CEDR[1] is one, and reference may usefully be made to the Commission of the European Communities’ green paper which defines alternative dispute resolution as ‘out-of-court dispute resolution processes conducted by a neutral third party, excluding arbitration proper’.[2]).

Traditionally, alternative dispute resolution is entered into voluntarily and governed by agreement between the parties in dispute. More recently, ADRs which are conducted by the court or entrusted by the court to a third party (ADRs in the context of judicial proceedings), are taking on a greater significance in Europe. For example, pursuant to Rules 26.4 and 44.5 of the Civil Procedure Rules for England and Wales, which came into force on 26 April 1999, the court may suspend a case to allow the litigants to have recourse to mediation and can order the litigants to make financial penalty payments if they refuse mediation.

ADR can work well where all want a fair and equitable remedy – and badly where they do not. These voluntary and little-regulated processes can be disingenuously appropriated to obfuscate rather than resolve issues, so deferring the day of reckoning and delaying both technical and legal remedy. For this reason, non-binding dispute resolution procedures are useful only where those involved are capable of moderating self-interest with enlightened objectivity, in which the natural desire to avoid blame is balanced with the long-term benefit that comes from consensus rather than dispute.

Finding consensus between opposing interests, especially where the outcome is likely to be costly to one party, is difficult. It is useful for those involved to remember, when considering strict liability, that compromise over the cost of repair is often cheaper than litigation. If the parties can be persuaded that it is better to put their energies and money into resolution rather than dispute, alternative dispute resolution offers several tried and tested methods.

Comparison of Alternative Construction Dispute Resolution Procedures

[1] www.cedr.co.uk

[2] ‘Commission of the European Communities, Brussels, 19.04.2002, COM(2002) 196 Final Green Paper on Alternative Dispute Resolution in Civil and Commercial Law’.

Limitation of Design Liability

In a recent arbitration, almost 12 years after completion of a new-build, low-rise block containing flats, shops and communal facilities, a developer claimed against his builder for water damage.  The developer particularised the claim in terms of design defects with a few sweep-up allegations of poor workmanship.  The remedial scheme commissioned by the developer involved a redesign of that part of the building alleged to be at fault.  The developer sought compensation from the builder for the full cost of the remedial works.

The builder confidently rejected liability for the cost of correcting design flaws as the design was produced by the developer’s chosen architect whose design the builder had been obliged to accept.  

While the builder correctly understood how the design work had been undertaken, insufficient attention had been paid to the peculiar split between design liability and design duty under the building contract.  The builder had entered a modified JCT design and build contract.  This made the builder liable for negligent design while requiring the builder: to engage the developer’s architect, to implement the architect’s design and not to alter the architect’s design.  Thus the builder had liability for a design over which he had no control.  

The design, as evidenced by the drawings, was completed more that 12 years before the action was brought.  Practical completion was less than 12 years before the action was commenced.  The developer held that, as a builder’s duty continued until practical completion, the action was not statute barred.  The builder disagreed, holding that if the action was statute barred against the architect, insofar as the claim was for deficiencies in the architect’s design, it must also be statute barred against the builder.   The developer also argued that there was an implied continuing duty to review the design during inspections.  However the building contract did not include a requirement for, and the architect was not engaged to carry out, routine periodic architectural inspections during the works.

From the outset, reports by the project insurer’s surveyor, the occupant’s surveyor and the developer’s surveyor informed the legal proceedings and formed the basis for the remedial work, which was completed earlier this year.  It was while the case was approaching a hearing and after the remedial work was complete that I was invited to prepare expert evidence and still later that the developer obtained an expert report. 

I reported that the design was flawed (but not as the developer asserted) and that the developer’s remedial scheme was similarly flawed.   The developer’s expert advised revising the developer’s case and the builder, on receipt of the developer’s expert’s report, stated that it raised issues other than those pleaded and applied to have much of it struck out unless the claim were revised.  Such a late fundamental revision to the Statement of Case may have exposed the developer to a claim for abortive costs and the developer eschewed this advice and resisted the application.   The arbitrator was minded to allow the claimant’s expert evidence on the basis he could properly ignore any part of it which did not go to the pleaded issues.

Both parties, now close to a hearing, were in possession of expert evidence which put into question the validity of the claim as pleaded but which showed there was, subject to the Statute of Limitations, a viable claim.   The developer’s costs already exceeded the sum claimed and the anticipated costs to go to a full hearing would make the parties’ costs greatly exceed the sum in dispute.  The result was a compromise settlement following the experts’ meeting.  Regrettably, due to the legal costs incurred, the settlement left both parties out of pocket by more than the sum claimed.  A high price to pay for the experienced gained.  An earlier reading of the contract documents and appointment of experts could have brought the dispute to a cheaper, quicker and more effective resolution.

Weatherproof Building?

When architects no longer coordinate designs and builders no longer accept responsibility for the building, how do you make sure a building is weatherproof?

 

From the outset of my career as an architect, I found it regarded as a normal and essential part of the architect’s role to coordinate the design team and integrate architectural, engineering and specialist designs into a working whole.  More recently, as a forensic architect, I find troubled projects where the project architect’s role is diminished, leaving no member of the design team with overall responsibility to coordinate the team and check the compatibility of each specialists’ contribution to the design.  This was brought out recently in a design and build project which leaks.  The general contractor blamed separately: the architect, the brick laying sub-contractor and the curtain walling sub-contractor for the failure.

What is an architect?

A survey has found that the majority of British adults have little idea what architects do:

·         15% do not know that architects design buildings.

·         22% do not know that architects prepare detailed construction drawings for building projects.

·         48% do not know that architects prepare specifications to be used for building projects.

·         69% do not know architects negotiate planning permission with the local authorities.

·         72% do not know architects apply for planning permission.

·         74% do not know architects can deal with certification for building projects.

·         79% do not know architects can ensure that the construction site complies with Health & Safety legislation.

·         86% are not aware that architects select, negotiate with contractors and manage contracts.

·         91% do not know architects run the financial accounts for building projects.

Building Defects and the Law

I often find rather naive views on UK law relating to building defects published on the web.  I have collated some of these commonly held misconceptions, which I address below:

1. Compliance with Current Standards

“Every kind of construction must be completed to current standards.”  Wrong!  British and adopted European Standards provide guidance and advice.  Generally they attempt to summarise a consensus of good practice.  Usually they represent the views of interested parties co-opted onto a committee.  Due to the time taken to produce a Standard it is, on average, about 7 years out of date when published.  They are not mandatory.  A failure to comply with them is not criminal.  Most importantly, following building standards does not ensure sound building or confer immunity from law suits.

2. Construction Law

“At the heart of construction law are the building regulations.”  Wrong!  Regulation of building is to be found in a wide variety of statutes from the Town & County Planning Act to the Housing Grants, Construction and Regeneration Act.  The building regulations are, in their inception, health and safety provisions which have recently been widened principally to encompass some environmental concerns.   Their applicability and content are limited.

3. Building Regulations

“These regulations set out precise levels of quality and competence that should be met within all construction projects.”  Wrong!  Schedule 1 to the regulations provides performance requirements but does not prescribe quality and competence.  Approved documents issued under the regulations give technical guidance in the form of deemed-to-satisfy provisions.  Compliance therewith, however advisable, is not mandatory.

4. Construction Defect Law

“Construction defect law exists to protect your building project from shoddy workmanship. Defect law also gives your builders clear guidelines they must follow.”  Wrong!  There is not a distinct law of construction defects.  There is limited regulation of workmanship standards under schedule 7 to the building regulations and certain habitability standards required under statute for residential housing.  They are primarily intended to protect residential tenants from the results of demonstrably poor work and will in limited circumstance only assist those who commission building work.

5. Regulation of Building Professions and Workers

“You can hire designers, builders and tradesmen safe in the knowledge they are qualified to carry out the work you are paying them for.”  Wrong!  Architect alone is a protected title.  In contrast, anyone can lawfully trade as surveyor, engineer, builder, etc. or offer architectural services as long as they do describe themselves as an architect.  There is limited regulation of function covering certain installations such as gas fittings, which is intended to reduce the incidence of unsupervised unqualified persons working on certain defined hazardous installations.  

Those who are uninitiated into the complex mishmash of building qualifications defined variously as: registered, chartered, time-served, competent persons, etc. are unlikely to distinguish say between an architect, who by law must be qualified and registered, and an architectural designer, who requires neither qualification nor registration.   Much building in this country is performed by unregistered persons lacking appropriate formal qualifications.  When I am asked to investigate supposedly negligent architectural design, more often than not the designer was not an architect but the employer thought he was.  In a similar vein but at the other end of the scale, the worst gas pipework I have inspected was not installed by, or under the supervision of, a competent person but this did not have come to light until my inspection report was served. 

When I started in practice, design was usually provided as a separate service unconnected with the building contractor and the designers were retained to supervise construction as independent inspectors.  Builders worked in teams lead by experienced tradesmen.  On large schemes we had resident engineers, architects and/or CoW’s.  Self-certification by plumbers, etc. was unheard of.  Independent inspection was the norm.

Building regulations have moved progressively towards self-certification in place of independent inspection.   Procurement through design and build contracts tends to separate the employer from the designers so removing from him the once traditional team of independent consultants capable of expertly monitoring the work in progress.  Most standard forms of contract however deny the employer the automatic right to work which is reasonably fit for its intended purpose, so taking from him the greatest legal benefit a design and built contract would otherwise bestow. 

Defects are often more easily concealed than corrected.  The temptation to hide mistakes has always been there.  When at some future date concealed defects manifest themselves, expert inspection is required.  What constitutes competent building design, sound materials, and good workmanship is not defined in statute.  To claim compensation a combination of expert opinion and legal assistance is required.  To resist or pass on a claim more expert and legal opinions are often engaged.

If there were a statute providing overriding building defects law, all this might be brought to an end.  To draft such an all-embracing law to effectively consolidate and extend existing regulation would take unprecedented ingenuity.

Cladding which did the 2-way shuffle

A cladding system designed to accommodate differential movements between an aluminium frame and metal-faced insulation-cored cladding panels experienced gradual displacement of building components as the gaskets snaked their way along the grooves between shuffling panels. 

The panels, being small, elongated less on heating than the relatively long frame sections.  The connection between the two was a combination of shelf brackets and clamps, with polymer gaskets inserted tightly into grooves between the panels to complete the weather-sealing.  Long continuous gaskets ran horizontally; vertical gaskets were shorter, and discontinuous at each horizontal joint. 

When the system heated up and expanded, the panels and vertical gaskets tended to move upwards.  When it cooled, the panels and gaskets contracted but did not uniformly return to their original positions.  The consequence was a gradual displacement of parts of the system relative to one another.  This opened gaps at the butt joints between horizontal and vertical gaskets and, in places, drove the vertical gaskets into the horizontal gaskets, deforming them.  Those panels on the elevations which received most sunshine moved progressively out of alignment.

The design was intended, by avoidance of rigid fixings, to allow reciprocal movements without distress.  But this lack of rigidity allowed each reciprocal movement to cause slight relative displacements in the panels and gaskets, the accumulation of which over time reduced weather resistance and marred appearance.

Sir Walter Scott, Guy Mannering, ch. 37, 1815:

A lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.

Lead Roof Corrosion

A recent investigation revealed an oversight in roof design.  The construction under investigation had wide lead gutters behind masonry parapets.  These gutter formed part of the roof and are in effect cold decks over thick thermal insulation.  Other parts of the roof were provided with interstitial ventilation following current guidance.  The gutters were not.

The natural durability of lead under normal conditions is due to the formation of protective insoluble salts which are formed on the surface. Moisture and carbon dioxide in the atmosphere combine to form weak carbonic acid and this reacts with bright metallic lead during periods of rain or overnight dews to form the normal grey patina typical of lead roofs. This thin continuous surface layer protects the metallic lead from further attack. On the underside of lead sheets these protective layers may not form.

Architectural Acoustics

The third most common complaint of defects in buildings is noise. Architectural acoustics is the study of applying sound control within and between buildings. An early well recorded application of architectural acoustics is in opera house design. More recently it has been applied to both new and renovated concert halls. This has much to do with the quality of sound rather than noise suppression which is critical to the design of multi-occupancy building and city centre living. Dwellings and business premises may both generate significant noise and suffer from noise intrusion. The design of workplaces has often to contend with the potential effects of noise on health. Architectural acoustics includes room acoustics, the design of recording and broadcast studios, home theaters, and listening rooms for media playback.