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Last edited 23 Nov 2020

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Najma Dunnett Other Consultant

The Board of Trustees of National Museums and Galleries on Merseyside v AEW Architects and Designers Limited and PIHL UK Limited and Galliford Try Construction Limited (in joint venture)

The Board of Trustees of National Museums and Galleries on Merseyside v AEW Architects and Designers Limited and PIHL UK Limited and Galliford Try Construction Limited (in joint venture) [2013] EWHC 2403 (TCC)

This is a sorry tale of professional negligence. So much of this appears to be caused by the architect’s misunderstanding and failure to truly appreciate its contractual obligations and recognise the scope and nature of its design responsibility and services. This case bears the hallmarks of a practice in too deep but looking to make its mark on an iconic building.

In about 2005 the Museum of Liverpool (the Claimant) engaged Danish architects to design the new museum, who in turn subcontracted much of the architectural work to a local firm of architects, AEW (“AEW”). It subsequently entered into a direct appointment with the Claimant when the Danish architects fell out of the picture. AEW’s duties included design, contract administration as well as design team leader duties of co-ordinating the professional team and an inspection role. The Claimant also appointed a contractor, a joint venture between PIHL and Galliford Try (“the Contractor”), with a contractor design portion element to the building contract. The usual suspects were also appointed including quantity surveyor, engineer and M&E consultant.

AEW’s appointment with the Claimant included the following clause: “AEW further warrants and undertakes to the Employer that in respect of the complete architectural services in relation to the Project as set out in this Deed he has exercised and will continue to exercise reasonable skill and care and diligence to be expected of a professional person acting in the capacity of a consultant experienced in carrying out such services for a development comparable in size, scope, complexity and purpose to the Project and within the scope of this Deed.” AEW also undertook a significant design co-ordination role, which it failed to properly discharge. The scope of services included various references to “ensuring”, an onerous obligation, for instance: “As Design Team Leader the Consultant will liaise with the M&E, Structural, or consultants as well as other specialist subcontractors and consultants to ensure all elements of the Project are fully co-ordinated...”

The main design failings comprised the steps and seats to the amphitheatres as well as faulty suspended ceilings. The design detailing of the steps and seats proved too challenging for AEW causing a redesign with consequent delay and additional costs. It also failed to produce a specification for the reinforced concrete cover to the steels for the steps and seats. The judge, Mr Justice Akenhead, remarked that this was a “huge lapse by AEW” even if it thought this detail was for others to specify. Add to this the collapse of poorly designed and inadequately installed ceilings causing injury and damage to exhibits.

The judge found AEW in breach of contract and negligent in failing to properly design the architectural steps and seats as well as finding it in breach of its co-ordination and inspection obligations. On the evidence, the architect was found to be extremely poor at the co-ordination function and the judge noted that it was “possible that the individual architects involved misunderstood what roles AEW had contractually undertaken.” It was liable for approx £1.1m in damages to the Claimant.

AEW joined the Contractor into the proceedings as a third party claiming a contribution (pursuant to the Civil Liability (Contribution) Act 1978) from them for failures in aspects of their design and workmanship which overlapped with AEW’s duties. In terms of apportioning liability between the Contractor and architect, the judge found the Contractor 25% liable for design and workmanship breaches and ordered it to contribute about £200,000 towards AEW’s damages.

In a later judgment, AEW was also found liable for the defective suspended ceilings. The architect was held to have failed to inspect the ceilings pursuant to its periodic inspection obligations although afforded adequate opportunity to inspect the works. A further £1.2m was awarded in the Claimant’s favour.

This case serves to underline the significance of clarifying at the outset of a project the roles and responsibilities of the parties and identifying who has (design) responsibility for what aspects. It is essential that this is reflected clearly in the contract documents. AEW did not clearly understand and appreciate the nature and extent of its contractual design obligations or its extensive co-ordination role. Surprisingly, AEW did not believe it had any design responsibility for the steps and seats and hence the serious problems that arose; it believed the Contractor was responsible for those aspects. The judge noted the unwarranted reliance and buck passing to others, when, as design leader, it should have taken important decisions itself.

The case also demonstrates the joint liability issues that arose amongst the consultants and the Contractor but it was the architect in the firing line.

Amongst the issues raised in this case are the importance of timely legal advice, the necessity to consider early settlement, which the court tried to facilitate, as well as the careful selection of experts. Whilst having your day in court is right for some, consider the ramifications of having the details of your firm’s alleged professional negligence played out in open court for all to see. The consequences of this cannot be underestimated.

This article was created by construction lawyer --Najma Dunnett as part of an ongoing series of legal articles. Follow Najma on Twitter to keep up to date with the latest changes in construction law @NDunnett_Cons.