Understanding the Standard of Care in Law

(a). Explain, with some examples or relevant case law, the standard of care that an Employer can require from his architect.

The general law on standard of care is that the courts will apply an objective standard of care that is based on what can be expected from a prudent member of the same profession or a prudent person having the same skill sets. The Bolam v Friern Hospital Management Committee case explained this standard of care as applicable to professionals to be based on the reasonable practices within the profession that the defendant belongs to. In Holland Hannen & Cubitts v WHTSO, the court held that the standard of care in design of windows of a hospital would require consideration of whether the windows would leak. An employer can expect that the architect would apply due care and skill, adhere to industry standards in construction and design and provide work of satisfactory quality and design. The application of due care and skill would be as per the Bolam principle, which provides that the reasonable practices within the profession ought to be adhered to by the professional. Also applicable is the principle of Duncan v Blundell, which held that works should achieve the standard of work done in a proper and workman-like manner and with the skill and care of an ordinary competent contractor. Architects can also be liable for negligence misstatement under the rule in Hedley Byrne and Heller case.

(b). Analyse the principle duties of an Architect appointed under the JCT2016 SBC/Q in relation to the issuing of notices and certificates and what are the principles which govern the way in which those duties should be carried out in terms of fairness and independence?

An Architect appointed under the JCT2016 SBC/Q has certain duties related to the issuing of notices and certificates. Under Clause 4.10, the architect has the duty to issue Interim Certificates that state the amount to be paid to the contractor. Interim Certificates are issued as and when further sums are payable to the contractor. JCT SBC 16 also requires that the architect specifies the basis on which payment is calculated and that it is calculated in accordance with Clause 4.10. It is possible that the contractor was overpaid in the interim certificate or latent defects were found after the contractor was paid. In such situations, the architect is under a duty to correct these errors or issues in later certificates. The architect can also issue a Negative Interim Certificate. Architects can have liability for negligent certification as per the principle in Lubenham case. In cases where the architect may have done over certification, he can be liable as per the principle in Sutcliffe v Thackrah where the court held that an architect owes a duty of care towards his client in certification. Negligent over-certification can attract liability in negligence (Merton LBC v Lowe). Also important is the duty of the architect to remain fair and independent. In this, architects have to remain fair to all parties and not be influenced by one as held in Hickman & Co. v Roberts where the architect undervalued the work done by the contractor on the ground that the client would not have accepted the valuation otherwise.

On commencing boring the first concrete pile for the construction of a new 5 storey development of apartments in Luton, the auger disappeared into an undiscovered surface water culvert. Work stopped whilst the client’s consulting engineer’s re-designed piling and foundations to bridge the bunkers and mass concrete pilling was poured. Assuming the project was let using the JCT traditional form of contract SBC/Q2016:

a) Propose the contractual procedures involved for all parties in dealing with this event.

This will involve variation, which is defined as an alteration to the scope of works in the original construction contract (JCT SBC 2016, Clause 5.1). Variations may be required in the form of alternation or modification of the design, or the quality or quantity of the Works (JCT SBC 2016, Clause 5.1). Certain variations may become necessary due to outside events, such as the one that happened in this case and the JCT SBC 2016 permits such variations. The contractor is entitled to receive the payments from the client where the variations undertaken require more work. Extension of time is also needed because under Clause 4, variations come under “Relevant Events” for which loss and expense is recoverable as well as time is extendable.

b) Evaluate the likely impact to the client on time and indirect costs.

Variations can have an impact on the costs of the project as some variations, like the ones required in this case, would cost the client more money. In such a situation, the client and the contractor can conclude on the valuation of variations. The valuation will be done on the basis of the work and other expenses that may be incurred in the process. In this case, the valuation would include the work involving the consulting engineer’s re-designing of the piling and foundations to bridge the bunkers as well as costs for the pouring of mass concrete pilling. These works are likely to delay the work as well as add on to the indirect costs of the work.

Critically analyse Five (5) main methods of resolving disputes in the UK construction Industry.

The five main methods of resolving disputes in the UK construction industry are Construction Act adjudication, Arbitration, Litigation, Mediation, and Expert determination. These are a combination of formal and informal methods of dispute resolution. Informal methods include Conciliation, Mediation, Negotiation, and Expert inquiry whereas the formal methods include Litigation and Arbitration. The combination of formal and informal methods responds to the different kinds of disputes that may arise in construction cases. Disputes are common in the construction industry but all kinds of disputes cannot be resolved by similar methods. The Latham Report 1994 led to the introduction of statutory adjudication under Housing Grants, Construction and Regeneration Act 1996. Parties may prefer to opt for litigation because it is managed by a judge with expertise to deal with complex issues and the authority to give a binding and enforceable decisions. However, only claims of value of more than £250,000 are admissible before the Technology and Construction Court while others come before the County Court. Litigation is also time consuming and expensive as it involves court fees and costs for lawyers. Due to these reasons, parties may prefer negotiation or mediation as these are optional processes that can be adapted by the parties. Mediation also has the advantages of being guided by a mediator who is a neutral and experienced; use of discussion between the parties; and being time efficient and inexpensive. Moreover, the disputing parties have the security of confidential proceedings which contrasts with the public nature of litigation. However, methods like negotiation and mediation have the disadvantage of not providing binding decisions. For this reason, arbitration may provide a better alternative to litigation and other amicable means of dispute resolution. Arbitration is cost-effective and time-efficient, involves confidential processes and leads to binding award. However, parties will still have to rely on litigation for the enforcement of arbitral award in case one party refuses to abide by it. Expert determination may be preferred by some parties especially in disputes involving valuation. Like mediation and negotiation, expert determination is also an informal system of dispute resolution. The disadvantage of this system is that its utility is limited to only valuation oriented disputes. However, its advantage is that where it is applicable, that is in valuation oriented disputes, it is economic, inexpensive, and informal. Parties however cannot enforce the decision of the expert because it is not binding in nature; ultimately, the parties may have to fall back on litigation or arbitration proceedings for the purpose of enforcement of the valuation provided by the expert.

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