Open mike — Shortly before Christmas, two of our legal columnists wrote unkind words about the RIBA’s new standard conditions for hiring an architect. Here, the editor offers a critique of his own
The objective of the RIBA agreements is to create a suite of documents that offers a fair allocation of risk between the parties, available in print and online and in architects’ and consultants’ versions. For maximum flexibility, each agreement comprises separate components that can be assembled and customised to make tailored and bespoke contracts.
The benefits of the new approach were not discussed by Ian Yule (23 November, page 59) or Rachel Barnes (7 December, page 57) who simply expressed their own particular views on one or two provisions in the RIBA Standard Agreement 2007.
Our online service is up and running, and the conditions of appointment, notes and guides relevant to each agreement are provided in locked pdf format; other components are available in pdf and rich text formats. The latter can be customised by the user to meet project requirements or modified to match its house style. This alone is a significant achievement by the RIBA, and will benefit all parties.
The components are written in the present tense and expressed in plain, intelligible language. This may not be popular with traditionalists, but is comparable with the NEC contracts and the next edition of the RICS’ form of appointment.
The core standard conditions were developed after consulting a select group of stakeholders, including professional bodies, lawyers, clients and architects. These conditions are suitable where detailed contract terms are necessary and for projects using most procurement methods, including design and build.
The suite also includes concise, domestic and subconsultant agreements, based on the core conditions but with simple terms.
Yule’s approach was entirely based on protecting clients from all risk, but he struggled to find examples of bias
Mr Yule’s approach was entirely based on protecting clients from all risk, but he struggled to find examples of bias. He drew attention to the clause that says the architect “performs the services, so far as reasonably practicable, in accordance with the brief and any timescale or cost limit agreed with the client”, but didn’t seem to understand that “so far as reasonably practicable” is the usual standard of care for a professional.
Ms Barnes seemed to think it was architects who needed more protection and said “it is unnecessary and inappropriate to impose” this express duty under that clause. She won’t be popular with Mr Yule. Apart from the overriding duty of care, the operation of that clause will be affected by other provisions, for instance, the duty to advise of “any aspect that will affect delivery or quality of the project”.
Yule and Barnes both criticise the no set-off provision, but this is there solely to mitigate the not uncommon abuse by clients of the legal right to set off claims, often spuriously, as a device for avoiding payments and to separate the issue of fees from claims that will be dealt with by the architect’s insurers.
They also criticise the provision that allows for architects to rely on information provided by the client. This clause has indeed changed from SFA/99 to meet the increased obligations of the client under CDM2007. Of course, architects must exercise a duty of care in incorporating any information from any source into their designs, but they are not responsible for checking, for instance, whether a survey or investigation is accurate.
It is worth remembering that most contracts that are found wanting in legal judgments tend to be bespoke contracts, rather than professional standard forms. The RIBA has worked long and hard, and engaged with a wide range of stakeholders, to achieve a fair balance of risk between clients, architects, consultants and their insurers.
Roland Phillips is editor of RIBA Agreements 2007