The subbie that designed and built some duff football pitches in Scotland wisely went out of business before it could be sued. But what about the architect?
The subcontractor went wrong, But the court decided that the architect was negligent and liable to the employer for repairs. What do you think?
Let me tell you the story. The project was a five-a-side football complex in Glenrothes, south-east Scotland; it consisted of a pavilion and six all-weather artificial pitches. Europa Construction (UK) was the main contractor and En Tout Cas was the specialist subcontractor for the six pitches. They were to be played on day and night. It rains in Glenrothes day and night. The ponding was awful, and dangerous. En Tout Cas did some remedial work and added some lateral drains. It hoped for less rain. But the real cause of ponding was the materials used in the sub-base.
Okay, that's all straightforward, you'll say. Get the contractor to get the subcontractor to dig it up and put it right. Three things get in the way of that. First, Europa had gone into liquidation; second En Tout Cas had gone into liquidation; third the architect had issued its defects liability certificate and final certificate. So, the employer had only one place to go. It sued the architect for professional negligence.
The test for professional negligence is to ask if, on the evidence, no ordinary competent and careful member of the relevant profession could have been guilty of the failure alleged against the professional.
There was a professional services contract between the employer and the architect, Donal Toner Associates. Under that, the architect was to provide architectural services for the pavilion and the artificial pitches, but it had no design input because the employer engaged En Tout Cas as a nominated subcontractor.
Next, the architect's duties to the employer included a duty to inspect the pavilion and pitches; and that, by the way, is an ordinary duty of architects. An architect has a duty to inspect materials delivered to site, progress and quality of the works and, where appropriate, it can ask for the sampling and testing of materials and workmanship. Understood?
Oh, and one other thing: would a careful and competent architect, having become aware of the surface ponding, do more than this architect did?
That said, it is important to recognise that in the absence of an explicit promise to the contrary, no architect owes a client a duty to guarantee the success of a project, nor supervise every aspect of the work as it is performed; nor does it have to inspect the progress of the works on anything other than a periodic basis.
In this case, the architect inspected the works, including those carried out by En Tout Cas, every 14 days or so. There is another point. Given that the design was down to the specialist contractor it could easily be the case that such specialist work was outside the expertise of the architect. So the architect's so-called negligence has to be tested in that limited context, that is, of an architect of ordinary competence, exercising reasonable care and skill.
At the trial the architect admitted that it was aware that the sub-base layers had to be free draining. It knew, too, that they were "all-weather" play areas. It also knew soon after the special work was finished that there was ponding. It didn't sit around. It tackled Europa. The main contractor eased the architect's mind by telling it that the downstream drainage had yet to be connected. The architect sat back. Should it? Shouldn't it have bypassed the main contractor and tackled the specialist directly? Oh, and one other thing: would a careful and competent architect, having become aware of surface ponding, do more than this architect did? Remember, it has a duty to protect its client's interests. Should it, at least, have whacked a cash deduction from the next certificate?
Hang on a minute. It rains in Scotland. The architect sees ponding. He is told why - drains have still to be connected. It isn't its specialist area and there is a nominated design and construct subcontractor. On the other hand, it continued to rain and pond all the way to the contractor offering up the whole project for practical completion. And it rained and ponded some more during the defects liability period and yet the certificate of making good defects was issued. Trouble is, the architect isn't to blame for the duff sub-base. It wasn't its specification and it didn't lay it; it just didn't spot it nor did it do a great deal about it when the ponding was obvious.
The judge said, had the architect raised the matter with En Tout Cas it would have probably investigated and reached the conclusion that its work was wrong - and rectified the situation at its own expense. The judge decided that the architect ought indeed to have bypassed the main contractor and got to grips directly with the specialist. So the cause of the problem was En Tout Cas but the cause of the loss of remedy was the architect. It was wrong and professionally negligent not to investigate, not to withhold money, not to withhold the practical completion certificate, not to withhold the certificate of making good defects and not to obtain a warranty from En Tout Cas.
Tony Bingham is a barrister and arbitrator