Superman himself would be hard pushed to meet the extraordinary expectations some developers have of the stamina and visual acuity of a consultant inspecting a site. Developers and their lawyers frequently propose clauses for consultants’ appointments that demand that they should identify each and every workmanship defect that may arise during the construction process.
This is optimism bordering on insanity. Even blessed with tights and a cape, a consultant just cannot be expected to swoop from one contractor to another, looking over the shoulder of every one of them, to ensure that no work goes unseen. Moreover, these reality-defying inspection clauses can appear even when the inspections have been set at once a week, or even once a fortnight. Of course, if challenged, any sensible client will respond that the clause is not intended literally. If that is so, it needs to be reworded.
It is dangerous for a consultant to agree to such clauses. In most cases, no matter what the workmanship error may be, or how unrealistic it is to expect a consultant to spot it, the inspecting consultant is the fall guy. The cry of “failure to inspect” rings out almost as a ritualistic war chant. The consultant’s involvement will cost them time and possibly legal fees, but a sensibly worded inspection clause may at least allow them to limit their involvement.
Another is problem is ambiguous inspection clauses. Examples abound in bespoke contracts, but even some standard forms can leave you scratching your head. Take, for example, the inspection clause in the Blue Book (the Architect’s Appointment 1982). Is there anybody out there – besides, perhaps, the drafter – who can say exactly what visiting the site “as appropriate” to “inspect generally” the progress and quality of the work means in clause 1.22? Nevertheless, this wording recurs in bespoke contracts with surprising frequency.
Later editions of the Architect’s Appointment (SFA/92 and SFA/99) have improved on this wording. They say that the architect should state at the outset the frequency of site inspections that “at the date of the appointment [it] expects to be necessary”. This means that it and the client should have a common understanding.
Of course, no matter what horrors recent jobs may have bought with them, human nature is such that an architect will approach a new job with the optimistic belief that all will run smoothly. If it does not, both contracts provide that the architect can agree with the client more frequent inspection at an additional cost.
In the past, I have heard plaintive cries from architects that their work and their fees are very much front-loaded, so that often the fee at the inspection stage barely allows them to break even, particularly where there is no provision for additional fees beyond a certain frequency of inspection. They argue that this is a defence of some sort should more frequent inspection be required, and the inspection is ultimately found to be inadequate. The 1955 case of Cotton vs Wallis is often cited as giving some support to this view. However, I would enjoy watching any barrister have a go at putting this defence despite the fact that one of the judge’s eyebrows is fixed half way up his brow throughout.
A court would almost certainly find that if a consultant contracts to inspect the work to a certain standard, then it has to do so, taking into account all reasonably foreseeable circumstances that may present themselves – even if this means that the fee agreed is inadequate.
Indeed, in Brown & Brown vs Peter Gilbert Scott & Mark Payne (1993), the judge held that it would be “a very rare situation” where an architect or builder could justly say that the employer could not complain about defects because the agreed remuneration was poor.
Another snare in a consultant’s inspection clause is where inspection is not inspection at all, but is instead referred to as “supervision”. Supervision implies some control over the actions of the party supervised. Many an inspecting consultant would freely confess that it can take all his courage to so much as articulate his concerns to certain site foremen, without coming anywhere close to professing to control their actions.
The word “supervise” should therefore be struck through with a decisive stroke of the pen. It is true that there is some authority to support the view that the distinction between inspection and supervision is now becoming more blurred, although it seems that much depends on the context of the words and the facts of the case. It is therefore safer to refer to “inspection” duties so that there can be no doubt.
No matter how a consultant’s inspection clause may read, there is a practical point always worth bearing in mind. An inspecting consultant should be wary of accepting anything that might be regarded as a gift or favour from a contractor whose work he is inspecting. There is nothing more innocent than a friendly mug of tea and a Jaffa cake in the site hut. However, the consultant could find it difficult to account for the Harrod’s Christmas hamper under his desk (with the contractor’s gift tag still intact) while appearing in court for failure to detect an error of workmanship.
Checking for flaws
- It is practically impossible to identify every defect that may arise during construction. Consultants should not agree to clauses that call for this
- Inspection clauses that mean different things to different people are common in bespoke consultants’ appointments and some standard forms
- Consultants will find it extremely difficult to use a low fee as a defence for inadequate inspections
- “Supervision” implies some control over the process – it is safer to refer to inspection duties
- An inspecting consultant should never accept gifts from a contractor
Melinda Parisotti is a barrister and a director of Wren Managers Limited, which manages a professional indemnity mutual for architects.