Another interesting aspect of the Museum of Liverpool case is that the architect had to pay an adjudicator’s fee for an adjudication it wasn’t involved in. Does this set a precedent?

Tony Bingham

Last week I told you about the architect on the new Museum of Liverpool being slammed for a problem with some tricky steps to the outside of this super building, and another problem when ceilings hit the deck.

Having decided liability fell on the shoulders of the architect, there came a trial as to what are the financial consequences. Two key things strike me. First, the quantity surveying experts were miles apart when it came to valuing how much such tasks as replacing the suspended ceilings would cost. Second is the approach taken by the court to the costs of an adjudication between the contractor and employer. Were those to be lumped onto the architect?

It’s odd really; the expert QS for the party calling to be paid is always a much higher valuation than the expert QS for the party paying up. On this duff ceiling job, the expert for the museum said the new ceiling work would cost £289,097. But the expert for the architect, supposedly shelling out, said £63,761!

You can bet that at least one of these so called experts did not enjoy this court experience and won’t be back. He was labeled as taking a blinkered, non-commercial approach on many items; also as tending to underestimate the likely price for remedial works. Of course, all experts, even QSs swear they are independent. But sometimes the independent expert displays partisan tendencies - unwitting partisanship is buried deep down at trouser level. Damn it - he takes sides and wants “his side” to win.

Sometimes the independent expert displays partisan tendencies - unwitting partisanship is buried deep down at trouser level

Instead of all this expert guessing, let the experts come up not with a price, come up with a specification. Then go out to tender for the actual work. Price it properly as in real life bidding.

Let the damages reflect commercial life in practice.

These damages and consequential costs went further than the work to be done. There are successful claims for all the staff time at the museum, the disruption and the loss of income during the repair works. Then comes a head of claim for legal fees in adjudication. The museum claims for the adjudication it lost when the then contractor, Pihl Galliford Try was being accused of making a hash of the amphitheatre steps. It was only after that the museum turned on the architect. Counsel for the museum argued that the architect, despite not being involved in the adjudication, should pay costs and adjudicator’s fees in the adjudication between contractor and employer. It came to about £120,000.

Here is how the judge decided whether these adjudication expenses are payable by the architect: the main issue between the parties revolves around reasonable foreseeability and causation linking the architect’s breaches of contract and the adjudication. In simple terms, there would have been no dispute at all between the contractor and museum if the architect had carefully designed, or coordinated the design, of the steps and seats. The judge explained that Pihl Galliford Try was thought by the museum to be responsible for the design. So the adjudication was fought on that basis.

The adjudicator, Derek Pye, decided that no design liability rested in the contractor’s camp. So the museum forked out the £120,000 fees and costs in the fight. The judge in the litigation decided the architect, not the contractor, was liable for the design and that the architect had been the cause of all these expenses in the adjudication. He was satisfied that the museum was acting in good faith when it accused the contractor of the design error.

“Be that as it may” said the architect’s barrister, the recovery of legal costs is not allowed in adjudication, so awarding these costs in this litigation by stating they were caused by an outsider, the architect, to the adjudication is a backdoor method of cost recovery.

The judge disagreed. He decided that the bringing of an adjudication between contractor and employer for an error of the architect had caused wasted legal costs in the adjudication.

The common law legal logic of all that stacks up. But parliament’s policy in the Construction Act is that each side bears its own costs regardless of the outcome. The architect tripped up his own steps and, as he fell he may well have pushed open a previously locked door about adjudication legal costs.

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