The much-debated Museum of Liverpool judgment shows us that it can be the architect’s head on the block rather than the contractor’s

Tony Bingham

The new Museum of Liverpool is now without doubt my favourite building. It sits at the Pier Head waterfront smack bang next to the Three Graces - those three historic buildings were built 100 years ago and crowned by the mythical, even comical, Liver Birds. It was a brave move to plonk this building in the midst of this world heritage site. It works, but there is a story or two behind the building of it.

The architect was originally the Danish firm 3XN. Let’s hope they come and do more in the UK. They walked off the job when they had a sense of humour failure about the Liverpudlian sense of humour. The Manchester architect, AEW, took over the reins and ended up at odds with the Liverpool Museum folks about fees. (I say no more on that because I decided that dispute).

They then got at odds about the suspended ceilings and the tricky design for a set of external steps and seating. That row brought in a joint venture between Pihl and Galliford Try.

There was an adjudication (not mine) about the steps and about what design liability the joint venture had: the answer was none. So the Museum folk went into litigation against AEW architects. Meanwhile, the ceilings fell down. And you might think that the contractor and subcontractor would be in the frame, if the falling down was a duff installation. Not always so.

You might think that the contractor and subcontractor would be in the frame, if the falling down was duff installation. Not always so

Liverpool Museum chose to sue the architect for what had gone wrong. Seemingly, there were numerous workmanship defects and the ceilings were not installed in accordance with the manufacturer’s requirements. Nor was the junction with the lighting track tickety-boo. When the wind blew across the Mersey, the ceilings panels to the foyer left for Birkenhead.

Now then, this is important. It is sometimes open to the building owner to elect not to sue the contractor builder, putter-upperer under the building contract - rather to sue the architect under that contract instead for the errors and omissions of others.

Here is how the judge approached it: “Would a competent architect exercising reasonable care and skill have allowed these deficiencies to be incorporated or remain in place?”
Do you see the important implications here?

He decided the architect was guilty of two failings. The first was with regard to the design and co-ordination of the ceiling systems. The architect, the judge said, was in breach for “failing to appreciate that what was being proposed was inadequate and unsafe”. The second failing of the architect was “a failure to pick up the widespread deficiencies during the periodic inspections of the ceiling works”.

Some unpersuasive argument was advanced to get the architect off the hook. It was suggested that because the ceiling work was done over a relatively short time, even a competent architect might well have missed the otherwise obvious deficiencies. That won’t do. It was even suggested that it could hardly be expected to spot iffy ceiling work from ground level. You might imagine the court’s reaction to that - get on the scaffold, mate.

The judge said: “I am satisfied that, if [the architect] had inspected, carefully or at all … it would immediately have seen that [the ceilings]were being installed carelessly and in a potentially dangerous way. It if had done, carefully or at all, any design co-ordination work, they would have seen that what was proposed would produce an unsuitable installation and a potentially dangerous one”.

Just for good measure, the judge added: “There is no evidence to suggest that [the architect] did inspect these ceilings at all and indeed the fact that the ceilings were extensively defective suggest to the contrary that it probably did not inspect at all. It is common ground that there was plenty of time to inspect because the works were done over a period of weeks.” He pinned liability for the defective ceilings on the architect.

Has all this livened up you architects? Go back and re-read the test of what is expected of you. Architects (and engineers too) are expected to use their reasonable skill and care to ensure the client is protected.

And when there is a design and build building contract or a subby is left to decide how to do the work, you architects have relaxed and taken your eye off the ball. Don’t!

Tony Bingham is a barrister and arbitrator at 3 Paper Buildings, Temple