Sir: Although described as “a QC specialising in construction law”, Robert Akenhead seems to know little about how architect/client contracts work in practice. I shall deal with his points in the order he raises them:
- The list of services not to be provided exceeds those within the agreed fee
Architects, unlike lawyers, often contract to work for a lump sum or a percentage of the building cost. It is important, therefore, to state at the beginning precisely what work will and will not be done for this fee. Excluded work and an extra fee for it can be included by agreement later.
- The length of the list of obligations for the client exceeds the length of the list of the obligations of the architect
Does Akenhead judge contracts by column inches? He should look at the requirement for the architect to exercise reasonable skill and care, which imposes an obligation on the architect far greater than the list of obligations on the client.
- The largest clause is concerned with the architect’s payment
Most of us must be paid for our work, much as we might enjoy doing it. Clause 5 merely sets out in detail how the architect should be paid for projects, covering various eventualities that may occur over the life of a project, which can be several years.
- The architect’s liabilities are limited
There is nothing wrong with professionals and their clients agreeing beforehand the limits to the former’s liability, providing the limit is reasonable. I am pleased this principle has recently been upheld by the Court of Appeal in a case I played a small part in. Of course, Akenhead has not previously had to concern himself with this. Only last month were barristers made liable for their own negligence as advocates.
- Even if the architect is liable to the client for 100% of the client’s losses, the client’s entitlement to damages is to be reduced to reflect other parties’ contributory responsibility
Leaving aside Akenhead’s obvious self-contradiction – how can the architect be responsible for 100% of losses if other parties have a contributory responsibility? – why should an architect be responsible for fully reimbursing a client when the negligence of other parties has contributed to the client’s loss? Surely, the liability should be distributed proportionately.
- The client guarantees that the architect’s work is checked by others
Building design is a team effort. As the architect is usually not in contract with the other team members, he must ask the client to ensure, through his contracts with them, that they co-operate with the architect in commenting on the work of the architect in relation to their own work. Or does Akenhead believe that clients should prefer that team members do not talk to each other?
- The architect is entitled to additional fees if he is involved in extra work
Why not? Does Akenhead do work without charging for it?
- No set-off
Experience in construction disputes demonstrates the ease with which unprincipled clients can unreasonably avoid paying fees by making a spurious claim of negligence. The no set-off clause (which Akenhead fails to mention has been in architects’ standard agreements since 1992) precludes this vicious tactic. Any client with a reasonable negligence claim can pursue it in the normal way, but as a separate action. Of course, Akenhead and his barrister colleagues are insulated from this inconvenience – barristers’ clients are solicitors, who are required by the Law Society to pay their fees.
- Penal rate of interest
Has Akenhead not noticed that the Late Payment of Commercial Debts (Interest) Act 1998 provides for late payment to attract 8% interest over base rate. This is why we put the same rate into SFA/99. Anything less encourages clients to borrow from their architects rather than their bankers, as the drafters of this legislation wisely realised. Again, not a problem I imagine Akenhead has ever had to worry about.
Of course, architects should shoulder responsibility when they are at fault (it’s a pity barristers have not felt the same about themselves), but why should they bear responsibility for problems caused or contributed to by others?
I suspect Akenhead has not had much experience in dealing with architects’ problems; the last thing an architect who has not been paid can afford is a barrister, let alone a “QC specialising in construction law”.
I commend SFA/99 to all clients that intend to treat their architects in good faith. Architects offered contracts that omit any of the above safeguards (and others included in SFA/99) are entitled to ask why.
RIBA AdviserSir: Robert Akenhead cannot seriously believe that the provisions of SFA/99 will, or are intended to, avoid or defer any responsibility the architect may have. His comments are not constructive and in some cases appear to be adversarial for the sake of it. If, in each of his examples, the full clause were to be reproduced in context, the reader could immediately see that it is not the contract that is unreasonable. For instance, his comment about checking the architect's work mirrors the obligation of the architect to co-operate with others with whom the architect has no contract, and the late payment percentage is that which applies under the Late Payment of Commercial Debts (Interest) Act 1998. Further, some of the outcomes he suggests seem unlikely. Standard forms of appointment are not like building contracts, which attach bills of quantities as the brief to the contractor. They must be flexible enough to cope with incomplete definition of the client’s needs at the outset, or direct appointment by the client of other consultants. Only if the scope of the architect's services and obligations are defined with a fair degree of accuracy at the start can the fee be predetermined to reflect the output required and the risks. Akenhead’s bias is maintained even to the end. He will know that the instances of architects’ claims for unpaid fees being hijacked by doubtful counterclaims with threats of crippling costs in defence, which may have to be met even when successful, are as prevalent as the examples he cites. Nevertheless, we are always glad to receive feedback and Akenhead's article will be considered, for whatever it may be able to contribute, at the next review of RIBA forms.Roland Phillips, RIBA adviser on appointments,Bexhill-on-Sea, East Sussex.
Stephen Yakeley, chairman, procurement sub-committee, RIBA, London W1.