Bingham's
Corner
TONY BINGHAM
Is an Arbitrator, Mediator and Barrister.
As well as that, Tony is a renowned writer,
commentator and lecturer.
WRAP THEM UP IN COTTON WOOL
When things went awry with the West’s riverside home, and the builder was already insolvent, they sued the architect. Why? He should have taken better care of them
YOU COMMERCIAL BUSINESS PEOPLE CAN’T BEHAVE TOWARDS CONSUMERS AS THOUGH THEY TOO ARE INTELLIGENT HARD-NOSED BUSINESS PEOPLE
I suppose £1.7m is what’s to be expected if you buy a semi-detached backing onto the Thames in Putney. You can watch the boat race from the bottom of your garden. Well done Mr & Mrs West. The only disaster that occurred was when they decided to engage an architect and builder and, well, build.
The price for the building work was £292,000 – the fee for the architect was not a lot at 8% of the build price. Six weeks after the work was sort-of completed the Wests found extensive damp in the lower ground floor. Waterproofing had only sort-of been done. Then they discovered that the plumbing and electrical works were only sort-of done and needed complete replacement and discovered that the new floor slabs in the ground floor were defective. They then discovered that their builder was insolvent. Then they sued their architect Ian Finlay Associates for their losses at sort-of £800,000.
The architect blamed the builder and his subbies, contending that all the problems were him and his subbies defective workmanship. But what happens now that the builder has gone bust? The Wests say that it was their architect’s job to detect defects as and when the builder did his sort-of work and give the builder a thick ear and have the defects put right. Oh really? Is that what the contract between the architect and his customer says? Certainly it has bumf in that contract called a net-contribution clause. It says, “Our liability (says the architect) for loss and damage will be limited to the amount that is reasonable for us to pay in relation to the contractual responsibilities of other consultants, contractors and specialists appointed by you.”
So it is the provision of normal architectural services as set out in the RIBA conditions. The fee included twice-weekly visits to site “in connection with administering the building contract”. Oh, what does that mean, please? And bear in mind that the architect’s customers are characterized, even anointed, by the divine title “consumers”.
You commercial, business people can’t behave towards consumers as though they too are intelligent hard-nosed business people. Do you by now already sense that these defects and cock-ups by the builder are going to land in the architect’s lap? Well, they did.
The adventure into this building work had an iffy beginning. Four bids came in, two at about £560,000, the other two well above. So the architect pointed to a builder he knew. This builder fellow put in a bid of £370,000. Oh dear! The Wests and architect then deleted this and that, hence the £292,000. The architects told the Wests: “My own view is that in the 20-years or so I’ve worked with this builder, he has never been a “bandit” price-wise and he has, overall, delivered a price substantially cheaper than others and that his price should be accepted.”
AN ARCHITECT HAS A DUTY OF CARE CONSISTENT WITH THE ORDINARY STANDARD EXPECTED OF THEIR PROFESSION
Oh come on – this time this honest builder has dropped a huge boo-boo. It was plain daft to go ahead on this disastrously wrong price.
As to detecting duff work, the duty of the architect, on this project at least was somewhat more than having a look on his twice-weekly visit. An architect has a duty of care consistent with the ordinary standard expected of their profession. Being on alert includes visiting site when an important task is got under way. For example, on this job the architect ought to have a beady eye when the new floor slab was being cast. It’s called taking care of your customer, and so too the architect’s own backside.
This court case is a superb set of guidance notes for every architect. Design liability, liability to watch, take care to explain, and to mollycoddle. So let’s take the initiative. Get every architect, every trainee architect, and every partner to come to the RIBA in Portland Place and go chapter and verse through this case to learn the lessons. Then and only then, will your professional negligence insurance outfit renew your yearly policy. And this is the reason; it’s because what this architect did or did not do is, in truth ever so ordinary. And if the court, the RIBA, and the teachers of architects think it’s below par, do something about it.
Let me tell you about the bumf we had to supposedly keep up with when I first came to this industry. I worked as a baby QS with a super construction outfit; we turned out really good work. My job was to measure the bricklayers and the carpenters who were “on the tape”. My boss told me where to shove the bumf - it was that famous bottom draw. Did it hold 86 forms? No. We had JCT 63, ICE 5th, GC works 1 (a very one-sided government form) and the favourite minor works form. That’s that. Subcontracts were the blue form and green form (for nominated work) and finally the FCEC subcontract for civils work. And did we read them? No, of course not. Nor does anyone nowadays read and understand those 86 forms. Construction people just want to build. The forms are what the lawyers pretend to know all about once they poke clauses up your nose. These forms are ammunition to exploit the other bloke in the blame game.
Well now, said I, in the prestigious lecture, let’s make friends with reality: we are stuck with this lunacy. Over these decades the forms have come down the conveyor belt like chocolates to be loaded by Lucy into boxes. The damn conveyor belt has got faster and faster, and she has stuffed them in her shirt, her mouth - and still they keep coming. The boys and girls at JCT, NEC (and more) won’t stop the belt. So now what? Reality: no one reads them; no one likes them; no one understands them; no one, repeat no one, follows the rules in them (lawyers pretend that’s a sin). So? Put up with it. Just run the risk that one day a rule in all this stuff will jump up and bite you ever so hard. Reality tells me that if you are a builder or a subby or architect or engineer or project manager, the thing to do is just do your best.
Wait, I haven’t finished. Hitherto, I have been going on about standard forms as printed and sold (at too high a price). What about the game of amending the forms? It was my turn to wave. In my waving hand is the contract document for works at one of our London railway stations. It is an amended NEC. They are called Z clauses … there are 220 amendments. Beautifully crafted amendments. That barge-pole isn’t long enough.
But wait, I still haven’t finished. All day I read in-house home made forms of contract. The authors have long since left behind amending standard forms in favour of these tykes. Come on, let’s make friends. If you are running a public enterprise, spending public money, but using these forms to coerce, then you can’t whinge about the want of good faith and fair dealing. If you are a private enterprise and using these forms to coerce, then you can’t lament the want of collaboration, co-operation and teamwork. All this beating each other over the head with all these forms hasn’t worked; isn’t working except for people like me. I love all the forms dearly, they create masses of disputes and conflict - and I sit here reading them. That’s the reality.
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www.buildingdisputestribunal.co.nz
“West v Ian Finlay & Associates – Is the Architect liable?”
33 BuildLaw | Jun 2017
43 BuildLaw | Sep 2017
www.buildingdisputestribunal.co.nz