Architect's Legal Pocket Book

Matthew Cousins

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351378000
• Edition: 3
• Topic: Architecture
• Subtopic: Architecture General

A little book that's big on information, the Architect's Legal Pocket Book is the definitive reference guide on legal issues for architects and architectural students. This handy pocket guide covers key legal principles which will help you to quickly understand the law and where to go for further information.

Now in its third edition, this bestselling book has been fully updated throughout to provide you with the most current information available. Subjects include contract administration, building legislation, planning, listed buildings, contract law, negligence, liability and dispute resolution. This edition also contains new cases and legislation, government policy, contract terms and certificates including the RIBA contract administration certificates, inspection duties and practical completion, The Building a Safer Future, Proposals for Reform of the Building Safety Regulatory System Report, the Hackitt review, the Report of the Independent Inquiry into the Construction of Edinburgh Schools and practical issues facing architects.

Illustrated with clear diagrams and featuring key cases, this is a comprehensive guide to current law for architects and an invaluable source of information. It is a book no architect should be without.

1
Legal framework

“Any comprehension of the law applicable to construction and engineering projects requires at the very least, a rudimentary understanding of the legal framework within which the law has developed and is applied, and the nature of legal rights and remedies deriving from the various sources of law.”¹

1 Bailey, J., 2011, Construction Law, Vol 1, p 5.

WHAT IS LAW?

The law is a body of enforceable rules comprising social, political, moral and economic factors intended to maintain order and social control of society. There are different types of law including common law, equity and statute law. Common law is the part of English and Welsh law developed by judges who make court decisions (case law) which are binding on lower courts (also known as precedent). Common law legal jurisdictions are widespread throughout the world in those countries formerly part of the British Empire and now forming the Commonwealth. The common law system is also used in the United States. The courts administer both common law and equitable principles. Statute law is the law enacted by the legislature in the form of Acts of Parliament.

Common law jurisdictions are to be contrasted with civil law jurisdictions, which are codified systems often based upon the Napoleonic Code. Such systems of law are prevalent in continental Europe, the former French colonies in Africa and the countries of Latin America.

Common law courts tend to follow an adversarial approach to litigation, whereas civil law courts usually adopt an inquisitorial system. In civil law jurisdictions, less weight is given to precedent. Three basic principles underlying the British Constitution are the separation of powers, the supremacy of Parliament and the rule of law.

CONSTRUCTION LAW

Construction law is a branch of the law that applies to construction and engineering projects.² Construction law is applicable to a diverse range of building and infrastructure projects, including bridges, houses, schools, offices and railways. Construction law is based upon the law of contract and tort, common law, equity and statute as incorporated into construction and engineering contracts. Construction contracts range in complexity and size from simple agreements to complex agreements incorporating legislative provisions including procurement routes and tendering processes and applicable laws. Risks are managed in construction contracts by allocating responsibility between parties.

2 Bailey, J., 2011, Construction Law, Vol 1.

HOW MUCH OF THE LAW IS THE ARCHITECT EXPECTED TO HAVE?

“Where you get a situation which involves the use of some special skill or competence … the test is the standard of the ordinary skilled man exercising and professing to have that skill. A man need not profess the highest expert skill … it is sufficient if he exercises the ordinary skill of the ordinary competent man exercising that particular art.”³

3 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, Informa Law.

Architects should have a sufficient understanding of the principles of the law and legal framework in which the law has developed and the nature of the legal rights and remedies from various sources of law. As an architect, it is important to understand duties and responsibilities under the contract and appointment. An architect is expected to have knowledge of the general rules of law applicable to the exercise of his profession⁴ and have a general knowledge of the law as applied to the more important clauses of the standard forms of building contract.⁵ If an architect does not have the relevant required legal knowledge, an architect should seek legal advice and should inform the client.⁶ It is important that architects keep up to date with the changes and updates to legislation and regulations, in particular changes to building regulations.⁷

4 Jenkins v Betham (1855) 15 CB 168.

5 West Faulkner Associates v Newham London Borough Council (1994) 71 BLR 1 at 15–16, CA, per Simon Brown LJ.

6 Ramsey, V. and Furst, S. (eds), 2018, Keating on Construction Contracts, 10th edn, Sweet and Maxwell, London.

7 Roe v Ministry of Health [1954] 2 QB 66 CA.

LEGAL RIGHTS AND OBLIGATIONS FOR ARCHITECTS

Legal rights and obligations for architects derive from:

• The legal framework and applicable laws;
• The roles and identities of the people involved in the project;
• The procurement route adopted;
• Legislation and regulations, in particular building regulations and British Standards;
• Professional codes of conduct.

In the 2019 case of Freeborn & Goldie v De Almeida Marcal (t/a Dan Marcal Architects),⁸ the judge stated that the following principles of law relating to the duties and obligations of architects should be applied:

8 [2019] EWHC 454 (TCC).

1. The primary basis for the duties owed by an architect is the contract entered into between the parties.⁹
2. It is commonly known that an architect owes a duty to provide the services supplied with reasonable care and skill (section 13 of the Supply of Good and Services Act 1982).
3. The standard of reasonable care and skill is not a standard of perfection. It does not make an architect the insurer or guarantor that the work has been properly done. It is not sufficient to prove an error to show that there has been a failure to exercise reasonable skill and care. A claimant must establish actual negligence.¹⁰
4. An architect is entitled to recommend to a client that the client appoint a third party with the requisite knowledge to carry out work that requires that specialist knowledge. Ordinarily the architect will carry no legal responsibility for the work to be done by the specialist that is beyond the capability of an architect of ordinary competence.¹¹
5. An architect’s obligation to supervise or inspect works will depend on various factors including the terms of the retainer, the nature of the works and his confidence in the contractor.¹²
6. A claimant is only entitled to recover any loss and damage caused by the architect’s negligence and that they have sought to mitigate.
7. The damage ordinarily recoverable where a building suffers from defects consequent upon the negligence of an architect is the cost of rectification.¹³

9 Jackson & Powell on Professional Liability, 8th edn, Sweet and Maxwell, para 9–013.

10 Jackson & Powell on Professional Liability, 8th edn, Sweet and Maxwell, para 9–119.

11 Investors in Industrial Commercial Properties v South Bedfordshire DC; Ellison & Partners and Hamilton Associates (Third Parties) [1986] 1 All ER 787 CA.

12 Jackson & Powell on Professional Liability, 8th edn, Sweet and Maxwell, para 9–220.

13 Jackson & Powell on Professional Liability, 8th edn, Sweet and Maxwell, paras 9–177, 9–180 and 9–183.

THE LEGAL FRAMEWORK

DIVISIONS OF LAW

Figure 1.1 Hierarchy of courts in England and Wales

COMMON LAW

Common law is part of English law, which is developed by judges who make decisions in court (case law) that are binding on lower courts. Common law is governed by the doctrine of precedent in which courts of a higher or the same level must apply the same reasoning in earlier cases. Common law legal jurisdictions are widespread throughout the world in those countries formerly part of the British Empire including the USA and in many Commonwealth countries such as India, Bangladesh, Canada, Australia, New Zealand, Pakistan and South Africa.

STATUTE LAW

Statute law refers to law that has been created by Parliament in the form of legislation. A statute is an act of Parliament. Architects should have an understanding of relevant statutes, for example the Building Act 1984. An architect should comply with the requirements of all relevant statutes.

CIVIL LAW

Civil law is a legal system originating in Europe based on core principles that are codified into a referable system that serve as the primary source of law and continuously updated. Civil law is related to the rights, duties and obligations of individuals to do with civil matters such as family, property, contract, commerce, partnerships, insurance, copyright and the law of torts. Civil law jurisdictions include countries in the European Union such as France, Germany and Ireland, the countries of Latin America, and Russia and China.

PRIVATE LAW

Private law is the body of law that deals with disputes and the legal relationships between private individuals. Private law includes the law of tort, property and trust s, family law and the law of contract.

PUBLIC LAW

Public law (also known as “administrative law”) is the body of law which deals with the state. It includes the exercise of powers and duties by public bodies arising under statute. It may include conflicts ...