Architect liability for material specification
Discussion
Morning all
I'd be grateful for a bit of assistance from anyone with experience/expertise in this area – this is not a request for free professional advice; I just have no idea what the options are where to start (and this is on behalf of a small Parish Council so funds are very limited).
We have recently had new changing rooms built on our village sports ground. Within a matter of weeks the exterior cladding has sustained football impact damage (broken planks) on several occasions. From researching the material specs, and having learned about the detailed world of impact resistance testing, the cladding specified appears to be entirely inappropriate for the environment.
I presume liability lies with the architect here, but what's the process for raising the issue formally? Should we engage a surveyor, solicitor, or someone else, and are we looking to the architect or his PI insurance for a remedy?
TIA for any guidance given!
I'd be grateful for a bit of assistance from anyone with experience/expertise in this area – this is not a request for free professional advice; I just have no idea what the options are where to start (and this is on behalf of a small Parish Council so funds are very limited).
We have recently had new changing rooms built on our village sports ground. Within a matter of weeks the exterior cladding has sustained football impact damage (broken planks) on several occasions. From researching the material specs, and having learned about the detailed world of impact resistance testing, the cladding specified appears to be entirely inappropriate for the environment.
I presume liability lies with the architect here, but what's the process for raising the issue formally? Should we engage a surveyor, solicitor, or someone else, and are we looking to the architect or his PI insurance for a remedy?
TIA for any guidance given!
Start by establishing who contracted with whom. Most contracts associated with building works contain dispute resolution clauses.
For legal advice, contact a solicitor.
When dealing with an insured person, your claim is against the insured, not the insurer, but the insurer may handle the claim.
For legal advice, contact a solicitor.
When dealing with an insured person, your claim is against the insured, not the insurer, but the insurer may handle the claim.
Breadvan72 said:
Start by establishing who contracted with whom. Most contracts associated with building works contain dispute resolution clauses.
For legal advice, contact a solicitor.
When dealing with an insured person, your claim is against the insured, not the insurer, but the insurer may handle the claim.
Thank you BV. Yes I believe the PC has contracts directly with both the architect and the the builder; I'll ask our clerk for a copy as a starter.For legal advice, contact a solicitor.
When dealing with an insured person, your claim is against the insured, not the insurer, but the insurer may handle the claim.
I'm hoping the architect will in the first instance be receptive to working with us to resolve the issue, but my experience with him to date portends a battle ahead..
There would have been agreement in writing to most aspects, if not all, of the specification and design.
I'm interested to know if there is any agreed standard or precedent in this area; would a client's agreement in writing on a specification absolve the architect's responsibility for inaqueqate choice of materials (not that this has been determined at this point I might add; my research suggests the cladding is not fit for purpose, but I have no expertise here)?
I'm interested to know if there is any agreed standard or precedent in this area; would a client's agreement in writing on a specification absolve the architect's responsibility for inaqueqate choice of materials (not that this has been determined at this point I might add; my research suggests the cladding is not fit for purpose, but I have no expertise here)?
SlowAndDull said:
There would have been agreement in writing to most aspects, if not all, of the specification and design.
I'm interested to know if there is any agreed standard or precedent in this area; would a client's agreement in writing on a specification absolve the architect's responsibility for inaqueqate choice of materials (not that this has been determined at this point I might add; my research suggests the cladding is not fit for purpose, but I have no expertise here)?
That would depend on what information and advice the client was given about the material. I'm interested to know if there is any agreed standard or precedent in this area; would a client's agreement in writing on a specification absolve the architect's responsibility for inaqueqate choice of materials (not that this has been determined at this point I might add; my research suggests the cladding is not fit for purpose, but I have no expertise here)?
As above, do some research on who appointed the architect, and what form of appointment was used (if any). Architect practices are required to have their own complaints procedure by the RIBA so that would be your first start, and then if they are unwilling to review your complaint you would need to engage a Solicitor.
On a practical level, speak with whoever briefed the Architect and see if the risk of accidental or deliberate impact by footballs was noted or if this was left for the Architect to determine the risk. Was the type of cladding imposed by a planning condition or an instruction for a low-maintenance product (plastic cladding) that directed the design away from a more durable timber cladding? Regardless, the client is very rarely a professional in building design and any agreement you made with the design team doesn't absolve them of their professional liability. They are appointed to specify suitable materials and to ensure they are used in the correct manner. The cladding may be perfectly fine, and approved by the manufacture for use in locations which may be subject to such damage, but only if they are fitted in a certain way for example.
On a practical level, speak with whoever briefed the Architect and see if the risk of accidental or deliberate impact by footballs was noted or if this was left for the Architect to determine the risk. Was the type of cladding imposed by a planning condition or an instruction for a low-maintenance product (plastic cladding) that directed the design away from a more durable timber cladding? Regardless, the client is very rarely a professional in building design and any agreement you made with the design team doesn't absolve them of their professional liability. They are appointed to specify suitable materials and to ensure they are used in the correct manner. The cladding may be perfectly fine, and approved by the manufacture for use in locations which may be subject to such damage, but only if they are fitted in a certain way for example.
The Surveyor said:
As above, do some research on who appointed the architect, and what form of appointment was used (if any). Architect practices are required to have their own complaints procedure by the RIBA so that would be your first start, and then if they are unwilling to review your complaint you would need to engage a Solicitor.
On a practical level, speak with whoever briefed the Architect and see if the risk of accidental or deliberate impact by footballs was noted or if this was left for the Architect to determine the risk. Was the type of cladding imposed by a planning condition or an instruction for a low-maintenance product (plastic cladding) that directed the design away from a more durable timber cladding? Regardless, the client is very rarely a professional in building design and any agreement you made with the design team doesn't absolve them of their professional liability. They are appointed to specify suitable materials and to ensure they are used in the correct manner. The cladding may be perfectly fine, and approved by the manufacture for use in locations which may be subject to such damage, but only if they are fitted in a certain way for example.
Thanks, both above - very useful and gives me plenty to work with.On a practical level, speak with whoever briefed the Architect and see if the risk of accidental or deliberate impact by footballs was noted or if this was left for the Architect to determine the risk. Was the type of cladding imposed by a planning condition or an instruction for a low-maintenance product (plastic cladding) that directed the design away from a more durable timber cladding? Regardless, the client is very rarely a professional in building design and any agreement you made with the design team doesn't absolve them of their professional liability. They are appointed to specify suitable materials and to ensure they are used in the correct manner. The cladding may be perfectly fine, and approved by the manufacture for use in locations which may be subject to such damage, but only if they are fitted in a certain way for example.
The architect was appointed by the Parish Council following a tender process; I only have a copy of the engagement letter at present, which states "We will undertake the Principal Designer duties under this agreement" if that answers the form of appointment question? We will look at following the mandated complaints procedure as a starter.
Our Clerk and Chair were mostly involved in the briefings, so I'll ask to see what conversations/emails there were at the time. I don't believe (but will check) that there were any planning conditions (the new building replaced a prior timber-clad structure), but it is likely low-maintenance was a key driver in choice of materials. Of interest it was a fibre cement cladding panel fitted (https://www.cembrit.dk/media/2034271/cembrit-plank-and-panel-datasheet.pdf).
SlowAndDull said:
Breadvan72 said:
...
When dealing with an insured person, your claim is against the insured, not the insurer, but the insurer may handle the claim.
...I'm hoping the architect will in the first instance be receptive to working with us to resolve the issue, but my experience with him to date portends a battle ahead..When dealing with an insured person, your claim is against the insured, not the insurer, but the insurer may handle the claim.
our own said:
No admissions
You must not make any offer, promise, admit liability for, or settle in part or in full, any claim in respect of which we might otherwise be obliged to indemnify You under this certificate without our prior written consent. We will not pay or be responsible for any defence costs and expenses incurred, in relation to any claim or circumstance, without our prior written consent.
You must not make any offer, promise, admit liability for, or settle in part or in full, any claim in respect of which we might otherwise be obliged to indemnify You under this certificate without our prior written consent. We will not pay or be responsible for any defence costs and expenses incurred, in relation to any claim or circumstance, without our prior written consent.
Breadvan72 said:
I have asked my clerk if any of my baby junior colleagues can assist via direct public access. They do lots of local authority gigs.
Appreciated. We have a PC meeting this week; I'm trying to get my understanding of the situation and options high enough so I can propose our next steps.Was the Works contract a Design and Build contract eg a JCT? If so you need to look carefully at the Employers Requirements and Contractors proposals as the specs for the materials could be in these.
Its a common failing for clients to miss spec changes in contractors proposals or to just leave the performance spec to the contractor.
Was the architect novated to the contractor? If so liability may lie with the contractor, if the employers requirements dictated the spec then liability lies with the client or possibly the architect if he drew up the spec.
You really need a decent contract administrator to go through all this stuff (its boring). I currently have 89 pages of JCT contract amendments on my desk for review because my contract administrator has done his back in. Mistakes are easy to make and difficult to rectify.
Its a common failing for clients to miss spec changes in contractors proposals or to just leave the performance spec to the contractor.
Was the architect novated to the contractor? If so liability may lie with the contractor, if the employers requirements dictated the spec then liability lies with the client or possibly the architect if he drew up the spec.
You really need a decent contract administrator to go through all this stuff (its boring). I currently have 89 pages of JCT contract amendments on my desk for review because my contract administrator has done his back in. Mistakes are easy to make and difficult to rectify.
Equus said:
Similar to car insurance, the Architect's PI insurance will have a clause telling him that he must not admit any liability. For example:
Thanks also, useful to know. our own said:
No admissions
You must not make any offer, promise, admit liability for, or settle in part or in full, any claim in respect of which we might otherwise be obliged to indemnify You under this certificate without our prior written consent. We will not pay or be responsible for any defence costs and expenses incurred, in relation to any claim or circumstance, without our prior written consent.
You must not make any offer, promise, admit liability for, or settle in part or in full, any claim in respect of which we might otherwise be obliged to indemnify You under this certificate without our prior written consent. We will not pay or be responsible for any defence costs and expenses incurred, in relation to any claim or circumstance, without our prior written consent.
blueg33 said:
Was the Works contract a Design and Build contract eg a JCT? If so you need to look carefully at the Employers Requirements and Contractors proposals as the specs for the materials could be in these.
Its a common failing for clients to miss spec changes in contractors proposals or to just leave the performance spec to the contractor.
Was the architect novated to the contractor? If so liability may lie with the contractor, if the employers requirements dictated the spec then liability lies with the client or possibly the architect if he drew up the spec.
You really need a decent contract administrator to go through all this stuff (its boring). I currently have 89 pages of JCT contract amendments on my desk for review because my contract administrator has done his back in. Mistakes are easy to make and difficult to rectify.
Thank you. The architect was appointed via a tender process; he then ran a tender on our behalf for the build, which was contracted between the PC and the construction company. I understand there are a few primary contract types in the construction industry, afraid at the moment I don't know which one (although JCT rings a bell). I believe the architect was project manager and contract administrator, but until I see the contracts I can't confirm for sure.Its a common failing for clients to miss spec changes in contractors proposals or to just leave the performance spec to the contractor.
Was the architect novated to the contractor? If so liability may lie with the contractor, if the employers requirements dictated the spec then liability lies with the client or possibly the architect if he drew up the spec.
You really need a decent contract administrator to go through all this stuff (its boring). I currently have 89 pages of JCT contract amendments on my desk for review because my contract administrator has done his back in. Mistakes are easy to make and difficult to rectify.
SlowAndDull said:
The architect was appointed by the Parish Council following a tender process; I only have a copy of the engagement letter at present, which states "We will undertake the Principal Designer duties under this agreement" if that answers the form of appointment question?
Does the "We" refer to the client or the architect? Principal Designer basically means that they will co-ordinate the design activities of the separate designers to ensure that everything fits and there are no material incompatibilities. It is not a form of appointment. There has to be a PD under CDM regulations and this is clarifying who is undertaking that role. PD explained.slowand dull said:
...a copy of the engagement letter at present, which states "We will undertake the Principal Designer duties under this agreement" if that answers the form of appointment question?
Just to clarify: 'Principal Designer' is a Health and Safety role.speedking31 said:
There has to be a PD under CDM regulations and this is clarifying who is undertaking that role.
Without getting too bogged down with interpretation of CDM Regulations, it essentially has nothing whatsoever to do with design responsibility: it's to do with who has responsibility for overall coordination of health and safety information during the design stage of a project.
speedking31 said:
oes the "We" refer to the client or the architect? Principal Designer basically means that they will co-ordinate the design activities of the separate designers to ensure that everything fits and there are no material incompatibilities. It is not a form of appointment. There has to be a PD under CDM regulations and this is clarifying who is undertaking that role. PD explained.
Thanks, useful reading. It's always fascinating delving into new areas, both to learn something new and remind me of how much I don't know!The 'we' refers to the architect. I've just been sent the first two pages of the (JCT) contract, which notes the PD to be a third party consultancy rather than the architect.
Every response above has reinforced my belief that professional advice is a necessity here - not only on the materials issue but also to understand the contractual liabilities - although I presume at this very early stage one of BVs colleagues would be jumping the gun (or not)?
Equus said:
slowand dull said:
...a copy of the engagement letter at present, which states "We will undertake the Principal Designer duties under this agreement" if that answers the form of appointment question?
Just to clarify: 'Principal Designer' is a Health and Safety role.speedking31 said:
There has to be a PD under CDM regulations and this is clarifying who is undertaking that role.
Without getting too bogged down with interpretation of CDM Regulations, it essentially has nothing whatsoever to do with design responsibility: it's to do with who has responsibility for overall coordination of health and safety information during the design stage of a project.
I think it is quite likely that you are going to struggle. I expect the design responsibility, whoever is carrying the can from the contractor side will be "reasonable skill and care" and not "fitness for purpose". In the former you would have to show negligence on the designers part to successfully claim. If there was fitness for purpose liability and if you had specified "cladding must be suitable for a sports ground and able to sustain ball impact", it would be absolutely clear the product was not fit, and it would be easy - but I expect not.
I think any cladding system, other than thick-plank timber is unlikely to survive heavy ball impact - certainly I doubt Cembrit plank will if installed as recommended.
Personally, I think the PC have to be pragmatic and go for a solution rather than litigation.
I think any cladding system, other than thick-plank timber is unlikely to survive heavy ball impact - certainly I doubt Cembrit plank will if installed as recommended.
Personally, I think the PC have to be pragmatic and go for a solution rather than litigation.
You need to go back to beginning of the tender process and work this one through.
If the parish council (not using PC as it confused me, that generally means ‘principal contractor’ in construction world) have engaged with an architect directly then you need to look at how that was tendered/ awarded.
Did the parish council come up with a list of ‘employers requirements’? did they state they need the cladding to be impact proof? or has the architect designed the building round it just being a functioning changing facility?
If it has been included within the employers requirements, but the architect hasn’t specified a cladding that suitable, then you may have a claim against the architect.
if the architect has specified correct and the building contractor has then used a product that doesn’t match the spec in the design, the fault could lie with them.
If the parish council (not using PC as it confused me, that generally means ‘principal contractor’ in construction world) have engaged with an architect directly then you need to look at how that was tendered/ awarded.
Did the parish council come up with a list of ‘employers requirements’? did they state they need the cladding to be impact proof? or has the architect designed the building round it just being a functioning changing facility?
If it has been included within the employers requirements, but the architect hasn’t specified a cladding that suitable, then you may have a claim against the architect.
if the architect has specified correct and the building contractor has then used a product that doesn’t match the spec in the design, the fault could lie with them.
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