The M&E engineer on a north London shopping centre paid out £1.25m after tenants complained about the draught. Then it tried to sue the architect …

Mrs Bingham had a bright idea last Saturday: “Let’s go to Smollensky’s Restaurant on the Finchley Road. It’s one of those fancy glass and concrete buildings you are always on about.” This is true. I had long been driving in and out of north London watching the O2 Centre go up. Never been inside. It’s a three-storey job on a sloping site. The lower floor entrance takes you into Sainsbury’s, then up a set of escalators to the ground floor on Finchley Road, then up another level to the atrium. “Draughty in here,” said

Mrs Bingham. “Yeah, I thought they’d fixed it,” I replied. Then the penny dropped. The anorak in me called up the case of Burford vs Brian Warwick Partnership in November last year.

Burford was the property developer. The anchor tenant was Sainsbury’s. Smollensky’s was another tenant. The architect was HOK, M&E consultant was Brian Warwick Partnership, or BWP. Almost from day one Burford got a flea in its ear. The tenants in the atrium next to the Finchley Road entrance said there was a draught. Burford now put a flea in BWP’s ear.

The diagnosis was “tunnelling”. Cold winds rushed in at Sainsbury’s car park level then onwards and upwards out again at Finchley Road. BWP said the remedy was to adjust the timing of the automatic sliding doors at Finchley Road and the Sainsbury’s car park, then replace the air curtains with side-mounted tailormade air curtains. Didn't work. Burford by now decided to bring in some fresh consultants. The remedy was to throw out the sliding doors in favour of two revolving doors at Finchley Road with a large lobby as well, together with automatic sliding doors at the car park entrance.

Then Burford sent the M&E consultants the bill. It was for £1.6m. This was for wasted and additional construction costs plus all sorts of other costs. The High Court action was begun in March 2003 by Burford against BWP. But BWP blamed the architect, HOK, and it was brought into the proceedings. BWP negotiated a settlement with Burford for £1.25m. Then BWP turned to HOK for that money. HOK said “No”. So this is one of those fights brought under a provision called Civil Liability Contribution Act 1978. It is not straightforward.

Chilling thoughts
Chilling thoughts

The diagnosis was ‘tunnelling’. Cold winds rushed in at Sainsbury’s car park level then onwards and upwards out again at Finchley Road

This act is all about non-contracting parties having a right against each other despite not being in contract with each other. Not only that, but when BWP compromised with Burford it did so saying it was not liable for the damages. It admitted liability so that it could claim the damages, in this case from the architect. Put shortly, BWP pays up then uses the act to blame another party under its professional services contract with the employer to get the £1.25m, or part of it, back. BWP had to show the court that HOK, as architect to Burford, was in breach of its duties to Burford and that the breach was a causative reason for the loss.

Now then, HOK as architect had overall responsibility for producing a scheme design report but it claimed it was up to the services consultant to come up with the services solution. It wasn’t for the architect to evaluate the risk of draughts. Remember that with this Civil Liability Act, the court is looking for the party that is responsible for the damage in question.

So we are looking at HOK’s duties to its client and did a breach cause any damage, which BWP has by now paid. The court decided that as the principal consultant and architect, HOK had a duty to co-ordinate the design, including those contributed by other team members. The architect owed a duty to Burford to evaluate the M&E solution. In fact both HOK and BWP had these duties. While BWP was “uniquely responsible” for ensuring that the internal environment met Burford’s requirements, HOK was also responsible to the client to look after its interests. BWP was liable for 60%, HOK for 40% of the £1.25m. So BWP got £400,000 or so back.

So, what caused the draught up my trouser leg last Saturday? One of the revolving doors had been stopped and its doors folded back. I don’t know why but I did notice that the shoppers came and went through that yawning opening. Smollensky’s has gone away; the place is empty.

Tony Bingham is a barrister and arbitrator specialising in construction. You can write to him at 3 Paper Buildings, Temple, London EC4 7EY, or email him on