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Making sense of liability and the law (Part 1)

Paul Finch’s letter from London: Innovation, Liability and Risk: architecture and the law

How can architects innovate and express their creativity without risking negligence actions in an increasingly litigious world? This was the question at the heart of the second seminar held at the RIBA in memory of the architects Peter and Muriel Melvin, Peter having been a highly regarded expert witness for three decades.

Margaret Bickford-Smith QC chaired the event, featuring four legal speakers and two architects. It was slightly ominously titled ‘Innovation, Liability and Risk: architecture and the law’. She began by reminding us that litigation lawyers always see things at their worst; construction lawyers were interested in the utility of contractual documents; and architects, by contrast, needed to look to the future in the course of designing, taking a positive view on how things could be made to work best.

The two architect contributors picked up the theme. Alfred Munkenbeck rejected the idea that architecture could be about repetition or functionality alone. There might be a requirement for a ‘wow’ factor, and he was honest enough to acknowledge that for creative designers, the client programme could easily be a launch pad for a line of design inquiry on the part of the individual architect.

In respect of risk, he noted it was generally engineers and contractors whose work resulted in the biggest potential risk if not competent – a threat to life and limb. Performance liability was their province too. Moreover, it was not true that experimental design was necessarily more risky than the routine, not least because innovation generally resulted in testing; more care might be taken than with construction of something assumed to be straightforward.

There was some nodding of legal heads when he then suggested that the cost of technical investigation and subsequent litigation could easily exceed the cost of putting the problem right without going to law.

Andrew Morris from Rogers Stirk Harbour + Partners (RSH+P) had some trenchant observations about the ‘weakened condition’ of the profession in Britain. He described the process of achieving high-quality design as one of navigation and manipulation; trying to keep an overview had become more difficult, but not impossible.

In respect of RSH+P projects, the Millennium Dome (not its contents) had been completed on time and £20 million handed back to the client; at Heathrow’s Terminal 5, BAA had taken the risk on behalf of the entire design and construction team, obviating the need for indemnity insurance and creating an atmosphere conducive to excellent team performance.

Most of RSH+P’s work is Design and Build (D&B) in the UK; the practice’s response has been to enhance the skills and experience of its architects, rather than diversify into myriad specialisms. This seemed to be the opposite of what the recent RIBA Building Futures report recommended, and must be worthy of more discussion within the profession.

Given D&B, it was important to establish relations with manufacturers (preferably via two-stage tenders) to help keep control of design and absorb lessons for use on future projects. Other hints included avoidance of subcontracting other disciplines; not taking responsibility for client-provided information, eg surveys; fixing lump-sum fees as late as possible; angling fees to Stage C since this is where value is created; getting clients to sign off every stage; insisting on wide-ranging additional fee clauses, including time overrun clauses for the construction phase; and when novated, trying to negotiate a responsibility to report directly to the client each month on progress and quality.

In the case of RSH+P’s almost-completed Neo Bankside residential development near Tate Modern, the D&B contract stated that the project manager could not comment on design matters without the architect’s approval! As it happens the liabilities of project managers were criticised for lack of clarity by one of the legal speakers, Peter Coulson, a high court judge who sits in the Technology and Construction Court. More about what the lawyers had to say next week.

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