Legalese: In most cases, the question is whether the architect has exercised reasonable skill and care
Architects’ appointments often require them to comply with industry standards. This is sometimes seized upon to argue that non-compliance with the standard constitutes a breach of contract. Is that necessarily so?
If an architect’s appointment requires compliance with an industry standard and that obligation is construed as a strict one, a failure to comply will equate to a breach of contract. This can have serious consequences, because many professional indemnity policies are written on the basis that they only apply to duties to exercise reasonable skill and care. Furthermore, a defence of contributory negligence (where the claimant is also at fault) is not available in respect of a breach of a strict obligation.
But special circumstances or clear language are normally required to impose a strict obligation on a construction professional. In most cases, the question is whether the architect has exercised reasonable skill and care.
In considering that question, the courts will look at relevant standards: ‘What matters are the requirements of good practice, and the British Standard is therefore a good place to start… It is always unattractive for a court to ignore the recommendations of a British Standard unless there is a good reason for doing so.’ McGlinn v Waltham Contractors Ltd (2007).
Departures from standards can, however, be justified. In the McGlinn case, copings did not project a minimum of 40mm from the face of the walls, as required by BS 5628: Part 3: 1985. The court acknowledged a departure from the standard may be justified, albeit that ‘if there was to be a departure from a British Standard recommendation, there would have to be a good reason for it’.
Similarly, in Trebor Bassett Holdings Ltd & Anor v ADT Fire and Security Plc (2011), an obligation to ‘comply generally with the requirements of British Standard 5306 Part 4’ in respect of a fire suppression system was held not to be a strict obligation and not to require the designer to comply with every part of the standard. It meant the standard’s recommendations were to apply generally and, if there was a good reason for departing from those, that would not be a breach. The conclusion that this was not a strict obligation and the finding of 75 per cent contributory negligence by the claimant is the subject of an appeal. If the obligation is held to have been strict and the finding of contributory negligence overturned, the outcome will look different.
As with contracts, there can be arguments about the meaning of industry standards. In McGlinn, the claimants alleged the design should have specified three coats of render instead of two. The court rejected the claimant’s interpretation of BS 5262 and found that a reasonably competent architect could have concluded that the site was not ‘severely exposed’ and so two coats sufficed.
Conversely, compliance with a standard does not necessarily equate to discharging one’s obligations. In Messer UK Limited v Britvic Soft Drinks Limited (2002), Messer supplied Britvic with CO2 containing benzene, making it unsaleable. Britvic’s specification required the product to comply with BS 4105. The Court of Appeal found it did. Nevertheless, the CO2 was found not to be of satisfactory quality.
What can architects do to protect their position?
- Ensure that your duty to provide your services and any specific obligations to comply with standards are expressly stated to be reasonable skill and care obligations.
- If you depart from a standard, document the reasons for it and involve someone suitably experienced in the decision-making process.
- If a claim is threatened, look at the terms of your appointment to establish the nature of your obligations.
- Look for insurance products offering wider cover, ie all civil liability, including breaches of strict obligations.
Peter Stockill MSc FCIArb is a partner at Berrymans Lace Mawer, which operates the RIBA Legal Helpline