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.