Why Do Architects Find Themselves in the Middle of Disputes?
The practice of Architecture is challenging, absorbing, fascinating, and complex.
The practice of Architecture is challenging, absorbing, fascinating, and complex. Architecture has been described as a practical art, frozen music, being about how a building’s shape, decoration, features and materials come together to form a look or a style.
In his treatise de Architectura, military engineer Marcus Vitruvius Pollio set out, in the 1st Century BC, a definition as “firmitatis, utilitatis, venustatis” which can be translated as “stability, utility, beauty” and in a more anglicised translation: “firmness, commodity, delight”.
Within this complex realm of art, design, technology and construction, there is myriad opportunity for things to go wrong. Most of the time, architecture is successfully created and fortunately, things rarely go wrong. However, in this article, I reflect on some of the areas where sadly this happens.
The standard of Architectural education in British Universities is generally a high one.
What are common legal cases that arise in architecture?
I have been instructed on many cases brought against architects by their clients. There seems to be a common theme running through many claims characterised by a lack of organisation and management within the architect’s business. A result of this can be a lack of attention and skill being provided at the proper time within the design process. The effects can range from architects not providing a good service, to them in acting in a negligent manner. There are areas of failure between these two extremes which require enquiry. Perhaps surprisingly, it is less often the case that an architect has made after considering a wrong design or detailing decision, and more often that insufficient consideration has been applied at the time it should have been to that part of the design process.
The standard of Architectural education in British Universities is generally a high one. I have seen a less rigorous approach to training architects on how to manage the process of design within a commercial environment. I have a lingering concern that the claims I see result from this. It is clear that such claims tend to arise after a period when architectural practice has been stretched for adequate resources.
The design of buildings is a highly complex matter. It is just about the case that each building is a prototype with the exception of mass housing. Such housing can suffer from its own particular difficulties if a generic mistake is perpetuated across a design type.
There are up to some 100 such standards of which an architect must be aware.
What are the standard regulations and codes architects must meet?
Architects must have a working knowledge of an increasingly wide variety of British Standards and to date European Standards. There are up to some 100 such standards of which an architect must be aware. An architect must know where, and have the resources, to research the detail of these standards. Separately there are the Building Regulations to be complied with. These are signally complex to understand. Compliance may require component testing for the more unusual building designs.
Architects must be aware of planning regulations, the town planning process and its rules and of planning law, of regulations affecting neighbouring property and also of contract law, most especially where an architect is appointed as Contract Administrator for a construction contract.
The detail of such necessary understanding cannot be held by one person for more than the simplest of building design processes. It is therefore imperative that an architects’ practice is organised and managed, to make the appropriate resources available at the right time before and during the design process. An architect’s organisation should be scaled to the size of the work commissioned.
Architects must have a full understanding of the applicable professional codes of practice. The Code of Practice of the Architects’ Registration Board applies to all architects. Architects who are also members of the Royal Institute of British Architects (RIBA) must additionally abide by that Institute’s code. The RIBA promotes a scheme of Chartered Practice. Practices accredited to this scheme are required to maintain further additional standards and to meet criteria which include staffing ratios and management systems including quality, training and safety schemes.
The building design process should involve the generation and recording of many decisions, some of which are of complex reasoning, together with extensive and related data records.
What can go wrong for architects?
I have not seen one constant technical failure running through the cases on which I am instructed. Each matter has its own set of circumstances which require detailed consideration. It is often the case, however, that inadequate management of the design process and especially poor reviews of changes to a developing design that lead to a negligent failing.
The RIBA publishes a detailed and comprehensive Plan of Work with related guidance on running architectural commissions. This extensive documentation includes the RIBA Job Book and the Handbook of Practice Management. Both are now at their ninth edition. This guidance has become an industry standard which is regularly updated. It would be a brave architect who thought such guidance could be safely ignored while at the same time maintaining a competent standard.
In my capacity as an architect actively engaged in practice and by reference to current codes, standards, guidance and competent practice, I am able to form my opinion as to what constitutes the work of a competent architect acting reasonably in particular circumstances or where performance falls below such standards. It is important to find out what the architect was instructed to do and how the instructed tasks were executed by comparison to a competent execution of that work.
The building design process should involve the generation and recording of many decisions, some of which are of complex reasoning, together with extensive and related data records. The design phase of more complex buildings can be measured in years. A detailed and painstaking analysis of such decisions, reasoning and data will invariably reveal a lack of competence, if it exists.
Building design is complex.
Your reputation during dispute resolution
I have no doubt that professional reputations are on the line for architects who are the subject of substantial claims. Claimants are exposed to substantial costs at trial if they would be unsuccessful. There is much at stake in such a dispute. A wrong strategy at an early date in pursuing a dispute can be expensive.
More private forms of dispute resolution such as mediation or arbitration offer some shield to public exposure, although the rigour of a trial is missing.
Building design is complex. It follows that deconstructing this to investigate real or perceived fault must be thorough. I have some concerns that the strict timetable of Construction Act adjudication while delivering a result in short order, cannot allow sufficient time for the more complex disputes to be properly understood, both by those preparing for adjudication and by those determining the dispute.
It takes time to assemble a careful case whether acting on behalf of a claimant client or an architect as a defendant. Analysis of the detail is essential. In my experience, the soundest test of such a complex dispute is at trial. To avoid pursuing a wrong path by either side, the importance of early without prejudice discussion, mediation and settlement must not be forgotten. Clearly, such processes should be informed by expert opinion on both sides. The full costs of a CPR Part 35 Compliant Expert Report might be avoided with a shortened report at an early date if the matter can be disposed of pre-trial.
John Perry B.Arch., B.Sc.(arch), RIBA, FRSA, ARB, MAE, AaPS
Director
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BLDA Architects
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As a Director of BLDA Architects, my work is wide-ranging across the field of architecture, although currently, focused on high quality residential and bespoke office architecture.
Spanning a career of 40 years in private practice, I have been responsible for the design and construction of many building types ranging in contract size from £40,000,000 to £50,000.
I also act as an expert in professional and construction-related disputes. I am engaged in pre-action advice, report writing, meetings of experts, mediations, adjudications and appearance in court. In Freeborn & Anor v Marcal [2019] EWHC 454 (TCC) I was instructed on behalf of the claimants. Findings, in this case, included the requirement that a written brief be provided by the architect and the ramifications if no such written brief is established.
I am responsible for major refurbishment works to Listed Buildings in St James’s Square and Belgravia London and for new houses in Kensington and in Suffolk. I am partner in charge of a rolling refurbishment programme for a major central London estate. I am responsible for the design of a national programme of low energy low carbon homes.
A recent commission Oceanic House Pall Mall London SW1 won the UK Property Award 2018/2019 for multiple residencies.
I am a visiting lecturer at the University of Bath School of Architecture.
Clients include private individuals, private estates, developers, contractors, commercial owner occupiers, investors, insurers and other financial organisations.
