The Designer's Duty - Time For Review

Introduction

To understand their risk exposure fully, architects, engineers

and other construction professionals engaged in design work need to

know the extent of their design liability. 'Extent' for

these purposes means two things: what they are obliged to do, and

for how long that obligation continues.

By its very nature, design is not a static concept. The notion

of design development is well-understood. Sometimes, the need to

alter the design exceeds mere development and involves a

reappraisal of aspects of the original design concept. On an

ongoing project, a variety of matters can occur which require

reconsideration of the original design. Sometimes these events can

occur after completion.

This paper is concerned with the extent of the duty to revisit

or review the original design and seeks to examine the following

questions in the light of recent developments in case law:

What does the duty to review a design comprise?

How long does the duty to review a design last?

What are the legal consequences of breach of the duty to review

a design in the sense of damages claimable?

For simplicity, the notional designer selected in this paper is

the architect, though the same considerations apply equally to

engineers and other construction professionals undertaking

design.

1. What Does The Duty To Review A Design Comprise?

It has long been established that an architect has a duty to

review his design. The writer has previously analysed the cases

which established this principle.1 The Court of Appeal

in Brickfield Properties v Newton held that, 'The

architect is under a continuing duty to check that his design will

work in practice and to correct any errors which may

emerge.'2

This principle has been applied in a number of well known

construction cases since. HHJ Stabb QC in London Borough of

Merton v Lowe declared himself '... now satisfied that the

architect's duty of design is a continuing

one',3 while HHJ Newey QC in Equitable Debenture

Assets Corporation v William Moss Group stated that,

'Morgan's obligation to design International House was

not, I think, a once and for all obligation, performed when a

complete set of working drawings, which included Alpine's, was

sent to Moss [the main contractor]. Morgan had both the

right and the duty to check their initial design as work proceeded

and to correct it if necessary.'4

In University of Glasgow v William Whitfield,

HHJ Bowsher QC also spoke of the duty to design as 'a

continuing duty.'5

What obligations are comprehended in the duty to review must, in

part, depend on what the architect has agreed to do within the

envelope of his professional duty. What he has been originally

engaged to do must be expected to have an effect on the nature of

the continuing duty, if only because the opportunities for review

will be so different.

In the early cases, the judges still spoke routinely of

'supervision' of the project. Thus in Victoria

University of Manchester v Hugh Wilson HHJ Newey QC explained

the architect's contractual and tortious duties as:

'... to exercise the skill and care to be expected of a

competent architect in designing the Centre, in supervising its

construction and, when and if necessary, reviewing and

amending the design.'6 [emphasis added]

More recently, it could not be taken for granted that the

architect would have undertaken a duty of supervision. In the RIBA

standard form conditions of engagement, the word

'supervision' has been conspicuously absent for some 25

years. It is true that in some more modern cases like Alexander

Corfield v David Grant, HHJ Bowsher QC could still be found

referring to 'supervision'.7 However, that

appears to have been based on implied terms of engagement. More

typical today would be Consarc Design v Hutch Investments,

where the same judge observed that while

'The older forms of contract required the architect to

"supervise". The more recent contracts including the

contract in this case, require the architect to "visit the

Works to inspect the progress and quality of the

Works".'8

His conclusion was that, 'It seems to me that inspection is

a lesser responsibility than supervision.'9

It may be readily conceded that engineers do still undertake

supervision,10 that architects in many jurisdictions

have statutory obligations of supervision11 and that UK

architects could still undertake supervision expressly or by

implication.12 But it seems logical that the 'lesser

responsibility' of inspection would afford fewer opportunities

for a review of the design than a full supervision obligation. It

is surely beyond question that an architect who undertook design

services only and had no part in the construction phase must be

regarded differently in terms of ongoing responsibility. If that is

right, it would follow that different levels – and

different durations – of a duty to review would attach to

different packages of professional services to be supplied.

In Tesco Stores v The Norman Hitchcox

Partnership,13 the architect had been engaged to

design shell works but was not involved in the site-based phase of

the works whilst the building contract was in progress. Later he

was engaged by Tesco in respect of the fitting out works of the

completed development. HHJ Esyr Lewis QC said that such latter

engagement could not enlarge the contractual duties under the

original retainer to design the shell works. As to the latter, he

had a continuing contractual obligation to answer reasonable

queries about his drawings which might have arisen during the

construction period and to draw attention to and, if necessary,

correct any deficiency of which he became aware during that

period.

Precisely what it is that the architect must do as part of his

obligation to review was addressed in the Technology and

Construction Court in New Islington and Hackney Housing

Association v Pollard Thomas and Edwards.14 In that

case, Dyson J (as he then was) found that the extent of the duty

would indeed depend upon what the designer had originally

undertaken. The case concerned serious noise disturbance

experienced by tenants in a housing association development as a

result of inadequate sound insulation between flats. Since it was

in dispute whether the claim against the architects was out of

time, it became crucial to establish when the cause of action

accrued.

Dyson J began his consideration, the most detailed undertaken of

the issue, by accepting the proposition that 'a designer who

also supervises or inspects work will generally be obliged to

review that design up until that design has been included in the

work', and noting that, 'In a number of cases, it has been

held that this duty continues until practical

completion.'15

Even at this stage Dyson J added the caveat that, '... it is

necessary to look at the circumstances of each engagement

...'16

His view of the Sachs LJ dictum in Brickfield

Properties17 is enlightening:

'But Sachs LJ was not concerned to explore the

scope of an architect's continuing duty to review his

design. In my judgment, the duty does not require the architect to

review any particular aspect of the design that he has already

completed unless he has good reasons for so

doing.'18 [emphasis added]

Dyson J also took a restrictive view of Judge Bowsher's

comments in the University of Glasgow case19

stating:

'I do not believe that Judge Bowsher was stating a general

principle that an architect is usually under a duty to review his

design even after practical completion. I think that his decision

was heavily coloured by the special facts of the case. In my view,

that case should be regarded as an example of an architect agreeing

to investigate the cause of defects in a building outside the terms

of his original retainer, and not as an example of the

performance of a continuing duty to review his design under the

original contract of engagement.'20

[emphasis added]

So what are the circumstances in which the architect must review

his design? The earlier cases had led the writer to conclude that

some form of trigger event was necessary and it was not sufficient

merely to point to the fact of the architect's continuing

involvement in the project.

Thus HHJ Stabb QC in Merton v Lowe, while describing

the duty of design as 'a continuing one', qualified this by

reference to '... the subsequent discovery of a defect in the

design, initially and justifiably thought to have been

suitable' the effect of which was that it 'reactivated

or revived the architect's duty in relation to design and

imposed upon them the duty to take such steps as where necessary to

correct the results of that initially defective

design.'21 [emphasis added]

It is true that HHJ Newey QC in Equitable Debenture Assets

Corporation had referred to an obligation to design by the

architects which included 'the duty to check their initial

design as work proceeded and to correct it if

necessary'22 [emphasis added]. However it

should be recalled that on the facts, the sealant of the curtain

walling (whose erroneous specification lay at the heart of the

problem) had failed from the start, so that the

'buildability' difficulties experienced by the contractors

had been known to the architect for many months. In other words, it

should not be assumed that HHJ Newey QC was suggesting the duty to

review the design arose automatically in the absence of a trigger

event.

More obviously consistent with Merton v

Lowe23 was the qualification of HHJ Newey QC in the

Victoria University of Manchester case to the effect that

the architect's duties included 'when and if necessary,

reviewing and amending the design.'24

Similarly, HH Judge Bowsher QC in the University of

Glasgow case was concerned with the situation '... where,

as here, an architect has had drawn to his attention that damage

has resulted from a design which he knew or ought to have known was

bad from the start ...'25 In such circumstances, the

designer would have 'a particular duty to his client to

disclose what he had been...