When does a design review go beyond the call of duty?
Although new years seem to come around with ever-increasing rapidity, just how clearly do you remember exactly what you were doing, say, six years ago? Memories inevitably fade and documents disappear. For these reasons the Limitation Act sensibly imposes a time limit within which actions must be brought. Beyond that time limit, although otherwise valid, it will be time barred and simply cannot continue.
Problems of limitation in building cases can be thorny, but one discrete topic addressed in a recent judgment about limitation was the circumstances in which an architect might have a continuing contractual duty to review a design.
There was a dispute about a possible breach of duty, and because of limitation the court had to deal with how long that duty continued for.
The action was brought by New Islington and Hackney Housing Association against Pollard Thomas and Edwards. The housing association issued proceedings on 1 May 1998, claiming problems with sound insulation. To avoid being 'out of time' under the Limitation Act, the housing association had to prove that the architect breached its contract after 1 May 1992, the relevant time limit being six years. The architect had administered two building contracts for the housing association, and for both 1 May 1992 fell between practical completion and the issue of the final certificate.
The housing association had to argue that the architect was under a duty to review its design until the issue of final certificates.
Mr Justice Dyson's starting point was the architect's contract - the RIBA standard conditions of engagement and the building contracts that the architect was administering, in both cases IFC 84.
The judge concluded that after practical completion the architect was powerless to change the design. It followed that practical completion was the watershed for the architect's duty to review its design. Thereafter, if requested by its employer to investigate a potential design defect, it was open to the architect to either refuse, or to agree a fee to do so. The judge therefore concluded that Pollard Thomas and Edwards had no contractual duty to review the design of the sound insulation after practical completion. The contractual claim against them was time barred.
The judge was, however, careful to point out that while an architect may not be contractually obliged to carry out such investigations, it may well be willing to do so without agreeing a separate fee. There will inevitably be a number of factors to take into account when faced with a request after practical completion to look into a possible problem, not least, the particular contract terms and the precise obligations they impose.
But what about before practical completion?
It is well established that there is a general obligation to review a design until it has been included in the works. Some cases have gone further, deciding that the reviewing duty continues until practical completion. Mr Justice Dyson's judgment explores in greater detail the period between incorporation of the design in the works and practical completion.
The judgment sets the hypothesis of an architect who designs foundations for a building that, after the foundations are finished, takes several years to complete. Is there a duty to review the foundation design after it is built but before practical completion? The judge concludes: 'In my view, in the absence of an express term or express instructions, [the architect] is not under a duty specifically to review the design of the foundations, unless something occurs to make it necessary, or at least prudent, for a reasonably competent architect to do so.'
Examples in the judgment are if the architect finds an article showing the specified materials are unfit for their purpose, or if the building shows signs of a problem, or if the architect is otherwise alerted that its design might be dangerous. In short, if you become aware of a possible problem before practical completion, investigate it and review your design accordingly.
Judgments are sometimes criticised for telling professionals where they went wrong, without setting out what their positive duties were. No such criticism can be levelled at this helpful and clear guidance from the Technology and Construction Court.