Whether or not their role is as “Lead Consultant” or “Project Lead”, architects are often called upon by their clients to provide advice and support that goes beyond design and specification or even contract administration. Whether it be introducing other specialist consultants to the project or advising on procurement and contract terms, the architect’s role and scope is often required to be flexible. The importance of defining and adhering to a clear brief was considered by the Courts in Freeborn & Goldie –v- Mr Daniel Marcal t/a Marcal Architects (and considered by the author in a May 2019 article). This article looks at the architect’s role in procurement and contracting: what are the architect’s duties so far as giving legal advice concerned and what are the consequences of overstepping the line?
Firstly it is worth remembering that the RIBA imposes a duty to inform the client when it is necessary to appoint other professionals: this is set out in clause 2.3 of the RIBA Standard Conditions of Appointment. Once the architect has made a recommendation, assuming he does not take on a sub-consultant but the client engages directly, the architect is not liable for that consultant’s advice – the risk shifts away from the architect’s PI insurance and onto that of the other professional.
Secondly it is important to note the context of the duty of care: all of the duties below will (in most professional appointments) be subject to a duty to exercise reasonable skill and care. Many of the duties mentioned below are implied terms: duties imposed by the Courts when they have considered what it means for an architect to exercise reasonable skill and care.
Thirdly, there are no hard and fast rules and there are not many reported cases containing helpful guidance from the Courts. Instead, there is a fairly clear position of “it depends” and a number of varied examples of where architects have erred and clients have brought successful claims. Let us look at some of those specific examples:
To amend or not amend – advising on the use of standard contracts
When it comes to procurement route, the Courts have held that architects have a general duty to explain to clients, in broad terms, their different options and to describe the general structure and contents of the various standard form building contracts. They should also explain that bespoke contracts may be an option worth considering. The highly respected Construction Law guide, Hudson, goes so far as to suggest that in certain circumstances, an architect may be negligent for suggesting the use of unamended standard forms.
Architects should also advise where appropriate on making amendments to standard form building contracts, particularly to deal with risks which the client has brought to their attention. In 1992 the Courts found that both the project quantity surveyor and the project architect were partially responsible for the client and the contractor using an inappropriate form of building contract.
Pay particular attention to the contract particulars
Even when working for a client who seems to be legally savvy, it is important that architects follow exactly the client’s instructions in relation to filing out the contract or checking the engrossment copy. In the case of Kenny & Reynolds Ltd –v- Pyper  the architect was found negligent when he failed to strike out a central heating system from the specification even after a decision to exclude the item.
If an architect negligently gives incorrect advice in respect of a building contract, what remedies might their clients be entitled to? It is important to remember that this will only be relevant if the client has suffered a loss at the hands of the contractor. There is no clear guidance here but the likely starting point for the Courts would be to look at “loss of a chance”: the client would first have to prove that the architect had been negligent, then prove that the contactor would more likely than not have agreed to the terms as the architect “should” have drafted/advised, and then demonstrate to the Court what they would have been entitled to recover from the contractor. The Court would likely then take a relatively formulaic approach based on probability and likelihood.
In short, it is not likely to be the case that if the architect negligently mis-drafts, he is liable to pay all the damages that the client thinks he would have recovered from the contractor. However, assessment of damages is likely to be complex and would involve a lot of input from both legal advisors and expert witnesses.
In the absence of hard and fast rules, what steps should architects take to protect their position? Clearly it is imperative to always comply with the terms of your appointment and scope of services, and to always follow the latest edition of the Architects Code: Standards of Conduct and Practice issued by the ARB (although that does not contain any specific commentary on giving legal advice). Given the multi-layered nature of these types of claims and the complexities of calculating damages if negligence is proven, this appears clearly to be a case where prudence is called for. Undoubtedly in a high number of projects, the vast majority of architects will be sufficiently professionally experienced, skilled and knowledgeable to appropriately and cost-effectively deal with the building contract on behalf of their client. However, if there are any elements of the project that start to raise concern, as with any other area of the project requiring other professionals, it would be sensible to consider recommending to the client that they engage specialist construction solicitors to handle the legal aspects of the building contract, sub-contracts, collateral warranties and other ancillary documents.