An Inspector Calls-Architect’s Inspection Duties
An architect acting as contract administrator under the standard forms of contract has to balance
what appear to be the conflicting duties of protecting the interests of his client, the Employer under
the Contract, whilst also fairly administering the Contract on behalf of both the Employer and
Contractor. Contrary to what many Employers may think, the architect does not “supervise” the
works. Nor does an architect ordinarily act as project manager, unless a specific agreement has
been entered into that he should. Normally the duties are of inspection and contract
administration. During the inspections, the architect must satisfy him or herself that the works are
being carried out in accordance with the contract and with statutory requirements. The architect
does not have any power to control the Contractor’s operations, but the contract will normally have
provision for the architect to issue instructions, including those requiring defective work to be
removed and rectified.
An issue that often arises is the frequency at which inspections should take place. It is traditional for
the frequency to be specified in the architect’s contract with the Employer and this will normally be
the number of visits the architect has allowed for in its fee. In fact more or less site visits will be
required, and although the interval between visits may be specified, it is not always wise to adhere
rigidly to such a framework.
Architect’s Duties in Respect of Inspection
The site inspection duties of the architect start with the appointment document. In this respect the
RIBA Standard Forms of Appointment are one of the benchmarks, but SFA/99 was criticised because
it sought to limit responsibility to that of making regular visits. The new RIBA Standard Agreement
2010: Architect (pack) includes both Conditions and Schedules. The Conditions state under 3.8 that:
“The Client acknowledges that the Architect does not warrant the competence, performance,
work, services, products or solvency of any such Other Persons”
Also under the Conditions, at clause 3.9:
“The Client shall hold the contractor appointed to undertake construction works and not the
Architect responsible for the management and operational methods necessary for the proper
carrying out and completion of the construction works in compliance with the building
contract or contracts.”
These Conditions do not exempt the architect from exercising reasonable skill and care in carrying
out the role of Contract Administrator. Traditionally courts have not been very sympathetic to the
way in which previous versions of the RIBA standard forms of agreement have sought to limit the
architect’s liability in this respect and it is likely that will not change with this new version.
In the Schedules, under Work Stage K the architect contracts to “Making visits to construction works
as Designer”. The term “Designer” is defined under the “Role Specifications” and in respect of site
visits this provides:
“(Where engaged to provide services during the construction stage other than any duties in
connection with administration of the building contract), making the appropriate number of
visits to the site for:
inspection generally of the progress and quality of the Relevant Design as built;
approval of such elements of the works as may be specified to be to the reasonable
satisfaction of the Designer;
obtaining information necessary for the issue of any notice, certificate or instruction by
the administrator of the building contract”
It is not clear how the appropriate number of site visits is to be arrived at, but it appears this clause
has been written to take account of recent case law.
Case Law
The development of case law around the inspection duties of architects has a long history starting
with Jameson v Simon1 in 1899 and culminating in a recent decision in that of Ian McGlinn v
Waltham Contractors2 in 2007. This case concerned a large house in Jersey which the Employer
considered to be so defective and badly designed that it had to be started again, so he had it
demolished, claiming damages of £3.6m.
HHJ Coulson provided a number of principles by which architect’s duties of inspection should be
judged, as follows:
PRINCIPLE 1: Citing Corfield and Grant3: the frequency and duration of inspections are to be tailored
to the nature of the works going on from time to time:
“…it is not enough for the inspecting professional religiously to carry out an inspection of the
work either before or after the fortnightly or monthly site meetings, and not otherwise. The
dates of such meetings may well have been arranged some time in advance, without any
reference to the particular elements of work being progressed on site at the time. Moreover,
if inspections are confined to the fortnightly or monthly site meetings, the contractor will
know that, at all other times, his work will effectively remain safe from inspection.”
PRINCIPLE 2: His Honour Judge Coulson went on to state:
“Depending on the importance of the particular element or stage of the works, the inspecting
professional can instruct the contractor not to cover up the relevant elements of the work
until they have been inspected … if the inspecting officer is carrying out his inspections which
are tailored to the nature of the works proceeding on site at any particular time, he will have
timed his inspections in such a manner as to avoid affecting the progress of the works.”
1
Jameson v Simon (1899) 1 F (Ct of Sess) 1211
Ian McGlinn and Waltham Contractors and Huw Thomas Associates and DJ Hartigan and Associates Limited
and Wilson Large Partners [2007] EWHC 149 (TCC)
3
Corfield v Grant (1992) 59 B.L.R. 102
2
PRINCIPLE 3: The mere fact that defective work is carried out and covered up between visits will not
automatically amount to a defence to an alleged failure on the part of the architect to properly
inspect the works. It will depend on a number of factors, including what the architect’s reasonable
expectations were as to what might be being carried out on site at the time and its importance to
the works as a whole.
PRINCIPLE 4: If an element of work is important because it is to be repeated throughout the whole
or part of the works, the architect must ensure it has inspected that part of the works early on, in
order to form a view of the contractor’s competence to carry out that part of the works.
PRINCIPLE 5: Reasonable examination of the works does not mean the architect has to go into every
detail. Citing East Ham Corporation v Bernard Sunley4, HHJ Coulson considered it was inevitable that
some defects would escape the architect’s notice.
PRINCIPLE 6: Referring to Corfield v Grant, the architect does not guarantee that an inspection will
reveal defects or prevent defective work being incorporated into the project.
Although the six principles highlighted in McGlinn help to summarise the duties of the architect
carrying out inspections, in practical terms they still do not provide a definitive set of guidelines that,
if followed, will allow architects to perform those duties in a way that attracts no liability. Put
another way, the six principles representing the current state of the law can be said to be:
1. The inspection regime must not simply be based around a pre determined regime of regular
site meetings. The traditional approach of stating that inspections might take place at say
weekly or fortnightly intervals, particularly if this is always on the same day of the week is no
longer sufficient.
2. Inspections must be tailored to the work being carried out. Therefore if a particularly
difficult stage of the contract has been reached the inspections could be expected to be
more frequent, or timed to coincide with significant construction events.
3. Inspections should be carried out so that the contractor cannot avoid them (random,
uninvited inspections). This is particularly important if the contractor has a track record of
poor or defective workmanship, or has had a history of covering up work before it could be
properly inspected.
4. Inspections must be timed so as to coincide with important aspects or stages of the work.
This may require instructions to be issued to stop important work being covered up prior to
inspection. This may have important consequences because it could be a source of claims by
the contractor for delay if such instructions are given unreasonably.
5. If defective work is covered up between inspections, this may not be a valid defence,
depending on the importance of the element and what was being carried out. This means
the architect may need to require the contractor to expose work, where there is suspicion it
may be defective. Unfortunately, for the most part an architect is unlikely to have this
knowledge, unless the contractor has a track record of poor workmanship.
4
East Ham Corporation v. Bernard Sunley & Sons Ltd. [1966] A.C. 407
6. Inspections of important or repeated items of work should be made to evaluate the
contractor’s competence. Inspections need to be carefully timed to coincide with these
works and this requires a detailed knowledge of the contractor’s programme
7. The architect is obliged to do the above no matter what fee agreement has been reached.
This could mean the architect is involved in considerable extra work, especially if the
contractor is not competent. The architect does not always have the final say in choosing
the contractor, particularly if the Employer is seeking the lowest price. There is therefore
perhaps a good argument why architects should negotiate fees for contract administration
on a time basis.
8. The architect is not under the same duty to inspect work in relation to other consultants, for
example, structural or M&E works, but to ensure co-ordination has been dealt with and to
record any obvious errors. Architects will be aware that the boundaries between the works
of different disciplines can often be blurred, particularly matters of co ordination.
9. The architect will not be able to rely solely on inspections by a Clerk of Works. This has
always been the case, but in my view the evidence of inspections by a Clerk of Works may be
very persuasive.
10. The architect should point out areas of defective work to the QS for valuations. This has
always been a necessary part of the process of certification.
11. The architect should point out defective work on an ongoing basis to the contractor and
prior to snagging/handover. This does not include work in progress which might be
considered to be a temporary disconformity. It is not always easy to distinguish what is
intended to be completed works and work in progress and in my view the architect should
protect its position by at least recording to the temporary disconformity to the contractor
and seeking conformation by the contactor that it has been put right.
12. Records should be kept of site visits, and in particular of defective work. Good records are
an important aspect of the architect’s work and are often overlooked, but can be invaluable
sometimes years after the vent when memories have faded.
13. The inspector needs to have sufficient experience. Often a more junior member of the
architect’s team will be sent to site, perhaps because fees are tight or because it is
considered to be good experience. The latter is often the case, but it is important that more
senior and experienced staff supervise the visits.
Consequences of Latest Developments in Case Law
In practical terms some of the above can be difficult to do. The contractor’s programme may assist in
forward planning inspections but it is often not detailed enough. The RIBA Job Book 2008 anticipates
that the architect will prepare an Inspection Plan “…which identifies when visits should be made, and
when checks can be made on tests which the contractor is obliged to make under the contract,
including visits by building control”. However, on the basis that the architect must carry out a least
some random site visits this is unlikely to be enough.
For the future I think that architects will need to not only have a regular regime of site visits, some of
which will coincide with regular site meetings but also plan other visits at critical stages of the
project, based on the contractors programme. Depending on how the contractor is performing it
may be necessary to make random visits to check on quality. The architect carrying out the latter
may not receive a warm welcome on site and it is possible that the relevant contractor’s site staff
may not even be present for an unannounced visit, but the recent case law suggests this has to be
done if the architect is going to fully protect its position of things do go wrong on site.
It is a requirement of the building control monitoring regime that the contractor notifies the officers
when certain critical parts of the works are to be carried out and when they are ready for inspection.
It is possible to include a similar regime in the contract provisions so that the contractor is obliged to
notify the architect before certain critical parts of the work are covered up, or when they are ready
for inspection, and that failure to do so could mean the architect is not obliged to certify the works.
Given the state of current case law this is something that architects could advise their clients to
include in their contracts. It will require the architect to carefully consider the various critical stages
of construction, and it is possible that the actual site visit regime can only be established after the
contractor is appointed and a programme agreed. However, this can only benefit the Employer and
in y view would help protect the architect from possible liability during construction stage.
© 2012 Murray Armes – Sense Studio Limited
__________________________________________________________________________________
This article was the subject of a seminar given to professional indemnity insurers in 2009. An
abbreviated version of this article was published in 2010.
Murray Armes is a Chartered Architect, Chartered Arbitrator, Adjudicator, Mediator, Dispute Board
Member and Expert Witness. He is the founder and managing director of Sense Studio Limited one
of the Uk’s leading architectural consultancies specialising in dispute resolution.
Murray can be contacted direct at [email protected]
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