Checklist for Architects

The initial court decision in West v Finlay 2013 provides "a superb set of guidance notes for every architect." Tony Bingham suggested in his column that every architect should "go chapter and verse through this case to learn the lessons."

The tips, quotes and lessons have been collated into a series of recommendations for partners entering into contracts for construction projects, particularly those involving hazardous processes.

Fees and Services (Take Care to Explain)

Architects Should: Be clear if you are required to organise and manage subcontractors working under direct client

agreements. [3, 42] Be clear about your fees from the very first question, or you risk not being paid. [21] Be clear if the 'coordination of consultants, specialists and suppliers' includes works let under

separate works packages. [43] If in doubt, cap your fees. [44]

Working with Others (Mollycoddling?)

Architects Should: Carry out your own financial checks on the contractor to see if any contribution for defective

work can be pursued. [8] Be realistic about the likely costs of works from the start, or you risk souring your relationship

with the client. [21-24] Be careful about commenting on the proposals of a specialist, especially whether the works are

necessary. [26] Avoid recommending any particular contractor (especially if their price is one-third cheaper than

others?). [32-33] Be independent of the contractor. Your duties are to your client or to act impartially. For

example, telling a client to agree the contractor’s application for payment because he is not a ‘bandit’ does not inspire confidence. [36-37]

Maintain good relations: "In the context of a domestic building contract, the emotional commitment of the employer is invariably high... the maintenance of good relations between employer, architect and builder is... crucial." [38]

When Disputes Arise (Take Care to Explain)

Architects Should: Avoid passing the buck - it is neither acceptable, not a good reflection on your professionalism as

an architect. [163] Be proactive. Once the contractor and its subcontractor had reached an impasse you need to

step in. [174] Be fair. Where a subcontractor is refusing to improve or comply with the documents "an

architect in this position would have to be careful to guard against giving the contractor too much leeway, but not at the risk of forcing him into insolvency… one must be careful not to give the contractor ‘too much slack’." [178]

Issue instructions where needed. If inspected work were condemned by the architect in robust terms, and the contractor refuses to remove and replace the non-compliant work, the court held it was the architect’s duty to "to issue an instruction for the removal of the work that was not in accordance with the contract." [185]

Breaches of Duty (Design Liability)

Architects Should: Explain options and the risks: your least duty is "to explain what the options were and the risks

attached to them." [116] Be up-to-date. An architect "would be expected to be aware of the relevant British Standards and

of the different forms of treatment for damp in buildings that were available." [117] Manage the processes especially for design approval. You must ensure that all documents are

submitted for verification "One serious failure…was that he did not take any steps to ensure that the contractor (or his subcontractors) submitted the required design drawings and calculations to [the M&E specifier] for comment and approval" as required by the M&E specification. [170]

Get approvals. An architect "could not have been expected to notice matters such as the incorrect arrangement of the boilers or inadequate capacity of the underfloor heating" but as these "would have come to light" if the drawings had been submitted for approval then the architect was liable. [171]

Supervision (Liability to Watch)

Architects Should: Co-ordinate visits with major works. An architect probably should be present for the pouring of

the floor slab "if that is reasonably possible." If the architect has agreed to visit the site twice a week then it "should not have been difficult" to arrange to be present when the slab was being poured. [137]

Stay alert. "[An] architect would not be expected to check the precise depth of the excavation or the mix of the concrete, unless he was put on notice that something was obviously wrong… an architect would be looking to see that the work appeared to be in accordance with the specification." [137]

Take a closer interest. Although there was no need to carry out "any form of regular or methodical inspection of [a specialist] installation as the work progressed" an architect should "take a close interest" when it became clear that all was not well. [161-163]

Take prompt steps to resolve a problem, once issues arise. [164]

Advice on Standard Forms

Architects Should: Be careful with standard forms. Although it is "good practice for [the architect] to specify a form

of contract that provided for contractor's design" where the contractor's design had to be approved by the services engineer then advising the client to use a traditional form of contract is "one that a reasonably competent architect could properly take." [211]

Author

Sarah Fox of 500 Words Ltd developed this guide. She is a speaker and trainer who cuts through the complexities of construction law. She provides confidence to those who use construction contracts through workshops that clarify and simplify the law. She is also author of the 500-Word Contract™.

To find out how Sarah can transform your technical training, contact her via: 07767 342747 or by email: sarah@500words.co.uk

Note: numbers in square brackets are to paragraphs in West & Anor v Ian Finlay & Associates (A Firm) [2013] EWHC 868 (TCC) on BAIILI.