Architect’s Legal Handbook

This page intentionally left blank

Architect’s Legal Handbook
The Law for Architects

Ninth edition

Edited by
Anthony Speaight QC (Editor)

Consultant editor: His Honour Judge Gregory Stone QC

AMSTERDAM BOSTON HEIDELBERG LONDON NEW YORK OXFORD

PARIS SAN DIEGO SAN FRANCISCO SINGAPORE SYDNEY TOKYO
Architectural
Architectural Press is an imprint of Elsevier Press
Architectural Press is an imprint of Elsevier
The Boulevard, Langford Lane, Kidlington, Oxford, OX5 1GB
30 Corporate Drive, Suite 400, Burlington, MA 01803, USA

First edition 1973 by the Architectural Press Ltd

Second edition 1978
Third edition 1982
Fourth edition 1985
Reprinted 1987
Reprinted 1989 by Butterworth Architecture
Fifth edition 1990
Sixth edition 1996
Reprinted 1997, 1998, 1999
Seventh edition 2000
Reprinted 2001, 2003 (twice)
Eighth edition 2004
Reprinted 2005, 2007, 2008 (twice)
Ninth edition 2010

Copyright © 2010 Elsevier Ltd. All rights reserved

No part of this publication may be reproduced or transmitted in any form or by
any means, electronic or mechanical, including photocopying, recording, or any
information storage and retrieval system, without permission in writing from
the publisher. Details on how to seek permission, further information about the
Publisher’s permissions policies and our arrangements with organizations such as
the Copyright Clearance Center and the Copyright Licensing Agency, can be found
at our website: www.elsevier.com/permissions.

This book and the individual contributions contained in it are protected under
copyright by the Publisher (other than as may be noted herein).

Notices
Knowledge and best practice in this field are constantly changing. As new
research and experience broaden our understanding, changes in research methods,
professional practices, or medical treatment may become necessary.

Practitioners and researchers must always rely on their own experience and
knowledge in evaluating and using any information, methods, compounds, or
experiments described herein. In using such information or methods they should
be mindful of their own safety and the safety of others, including parties for whom
they have a professional responsibility.
To the fullest extent of the law, neither the Publisher nor the authors, contributors, or
editors, assume any liability for any injury and/or damage to persons or property as a
matter of products liability, negligence or otherwise, or from any use or operation of
any methods, products, instructions, or ideas contained in the material herein.

British Library Cataloguing in Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data

A catalog record for this book is available from the Library of Congress

ISBN: 978-1-85617-627-9

For information on all Architectural Press publications

visit our website at www.elsevierdirect.com

Printed and bound in the UK

10 9 8 7 6 5
Contents

Editor’s preface ix 5 Introduction to Scots law 43

Catherine Devaney
Acknowledgements x 1 Scots law: a distinct legal system 43
List of contributors xi 2 Historical context 43
3 Modern context: devolution 43
4 Scotland and European law 44
Part A: General principles of law 5 Scotland and human rights 44
6 Categorisation of Scots law 44
1 Introduction to English law 3 7 Sources of Scots law 44
Anthony Speaight QC 8 The court structure 44
1 The importance of law 3 9 Branches of Scots law 46
2 The legal systems of the United Kingdom 3 10 Limitation of actions 47
3 Sources of English law 4 11 Choice of law 47
4 English legal history 5 12 Jurisdiction 47
5 The scheme of this book 6
6 Scots land law 49
2 The English law of contract 9 Catherine Devaney
Anthony Speaight QC 1 Introduction 49
1 Introduction 9 2 Rights: real and personal 49
2 Scope of the law of contract 9 3 Classification of property 49
3 What is a contract? 9 4 Land ownership 49
4 Intention to create legal relations 10 5 Sale of land and buildings 51
5 Consideration 10 6 Land registration 51
6 ‘Agreement’ 11 7 Title conditions: servitudes and real burdens 51
7 Terms of a contract 12 8 Access rights 53
8 Exclusion clauses, UCTA and the Unfair 9 Tenements 53
Terms in Consumer Contracts Regulations 1999 14 10 Boundary walls and support 53
9 Standard term contracts 15 11 Nuisance 53
10 Misrepresentation 15 12 Other restrictions on heritable property 53
11 Performance and breach 16 13 Leases 54
12 Privity of contract 17
13 Agency 19
14 Limitation under the Limitation Act 1980 20
Part B: Statutory framework
7 Statutory authorities in England and Wales 57
3 The English law of tort 21 James Strachan
Vincent Moran 1 Local government 57
1 Introduction 21 2 Other statutory bodies 61
2 Negligence 21 3 Statutory undertakers: connections to services 62
3 The Defective Premises Act 1972 26 4 Private streets 65
4 Nuisance 26 5 Grants 65
5 The rule in Rylands v Fletcher 28 6 Housing associations and societies 66
6 Trespass 28 7 Special premises 66
7 Breach of statutory duty 29
8 Inducing breach of contract/wrongful interference 8 Statutory authorities in Scotland 69
with contract 29 Robin Fletcher
9 Limitation periods 29 1 Introduction: government in Scotland 69
10 Remedies 30 2 Connection to services 70
11 Apportionment of liability 30 3 Private streets and footpaths 71
12 Conclusion 30 4 Grants 71
5 Housing associations 72
4 English land law 31 6 Special considerations 72
Martin Dixon
1 Land law and conveyancing distinguished 31 9 Construction legislation in England and Wales 75
2 The extent and meaning of ‘land’ and intrusions upon it 34 Martin Edwards and Murray Armes
3 Easements 35 1 Building Acts and Regulations 75
4 Restrictive covenants 37 2 The Building Regulations 2000 75
5 Landlord and tenant 38 3 Control of building work other than by the local authority 78
6 Surveys of property to be purchased 39 4 Exemptions from control 78
7 Mortgages 40 5 Other controls under the Building Act 1984 79
8 Business tenancies – architects’ offices 40 6 Local legislation in Inner London 80
9 Estoppel 41 7 Local legislation outside Inner London 81

v
vi Contents

8 Other national legislation 81 Part C: Building contracts

9 Technical harmonisation and standards 84
16 Introduction to procurement methods in construction 171
10 Building Regulations in Scotland 91 John Salway
David Wedderburn 1 Introduction 171
1 Introduction 91 2 Complexity 171
2 Review of the new Building Standards system 92 3 Clients’ expertise 171
3 Outline of Building (Scotland) Act 2003 93 4 Commercial drivers 171
4 Commencement orders 100 5 Other factors affecting choice of procurement method 172
5 Building (Procedure) (Scotland) Regulations and 6 Procurement options 172
subsequent amendment (2007) 100 7 Some pricing mechanisms 174
6 Building (Forms) (Scotland) Regulations 2005 and 8 Which contract? 174
subsequent amendments (2006 and 2007) 101 9 Conclusion 175
7 The Building (Fees) (Scotland) Regulations 2004 and
subsequent amendment (2007 and 2008) 101 17 The JCT Standard Form of Building Contract,
8 Building (Scotland) Regulations 2004 and subsequent 2005 edition 177
amendments (2006, 2007, 2008 and 2009) 102 Allen Dyer
9 Other national legislation affecting building 109 1 Articles of Agreement 177
10 Scotland Act 1998 115 Conditions
11 Proposed changes for building standards 115 2 Section 1: Definitions and Interpretation 179
12 General 117 3 Section 2: Carrying out the Works 179
13 Building standards in Scotland: current legislation 117 4 Section 3: Control of the Works 190
5 Section 4: Payment 195
11 Planning law in England and Wales 119 6 Section 5: Variations 202
Andrew Fraser-Urquhart 7 Section 6: Injury, Damage and Insurance 204
1 Introduction 119 8 Section 7: Assignment, Third Party Rights and
2 Local planning authorities; or who is to deal with Collateral Warranties 205
planning applications? 121 9 Section 8: Termination 206
3 The meaning of ‘development’ 122 10 Section 9: Settlement of Disputes 207
4 Control of development in general 123 11 The Schedules 208
5 Buildings of special architectural or historical
interest – listed buildings 128 18 The NEC Engineering and Construction
6 Urban Development Corporations; Simplified Contract and related architects’ forms 209
Planning Zones 129 Gordon Hall
7 Enforcement of planning control 130 1 Introduction 209
2 NEC3 Professional Services Contract June 2005
12 Planning law in Scotland 133 (as further amended in June 2006) 209
Michael Upton 3 The parties’ main responsibilities 210
1 Introduction 133 4 Quality 211
2 General 134 5 Payment 211
3 The planning authority 134 6 Compensation events 211
4 Development 134 7 Rights of material 211
5 Control of development 134 8 Indemnity, insurance and liability 212
6 Listed Buildings 136 9 Termination 212
7 Enterprise Zones, Simplified Planning Zones and
19 Other standard forms of building contract 217
Business Improvement Districts 137
Gordon Hall
8 Enforcement of planning control 137
1 Introduction 217
9 The implementation of the 2006 Act 138
2 JCT Documents for entering into Nominated
13 Public procurement under European Union law 139 Sub-contracts 217
Stephen Mavroghenis 3 Nominated Sub-contract Conditions (NSC/C1998 edition) 217
1 The European Union and its institutions 139 4 JCT Standard Form of Domestic Sub-contract 2002 (DSC) 217
2 The founding treaties 139 5 JCT Intermediate Form of Building Contract (IC 2005) 218
3 Public procurement 141 6 JCT Minor Works (MW05) Agreement – replacing MW98 219
7 HOC 2005 (formerly JCT Building Contract for a
14 Party walls 155 Home Owner/Occupier 2002) 219
Graham North 8 JCT Conditions of Contract for Building Works of
1 The Party Wall etc. Act 1996 155 a Jobbing Character (previously JA/C/T90 now RM
2 Definitions 155 2006 and called JCT Repair and Maintenance Contract
3 Notices 155 (Commercial)) 219
4 The surveyors 156 9 JCT Standard Form of Measured Contract 1998
5 The award 156 (MTC98) now replaced with MTC 2006 219
6 The building owner’s rights 157 10 DB2005 (previously JCT Standard Form of Building
7 Boundary structures in Scotland 158 Contract) with Contractor’s Design 1998 (WCD98) 220
11 JCT 1998 Contractor’s designed Portion Supplement
15 Health and safety law affecting architects 161 1998 (was CDPS98) now contained within the SPC
Richard Dyton suite of contracts 221
1 Introduction 161 12 JCT Major project Form 2003 (MPF) now MP2005 222
2 Existing health and safety position 161 13 JCT Standard Form of Management Contract 1998
3 Construction (Design and Management) edition (MC98) now the JCT Management
Regulations (CDM) 163 Building Contract 2008 222
4 Relevant EU legislation 165 14 GC/Works/1 (1998 edition) 223
5 Summary and practical considerations 166 15 JCT 2005 Framework Agreement 223
6 Health and safety law in Scotland 167 16 Building contracts in Scotland 223
 Contents vii

20 Contractor and sub-contractor collateral 26 Arbitration procedures found in construction industry cases 265
warranties/third party rights 227 27 The role of the courts in arbitration proceedings 266
Ann Minogue 28 Powers to enforce the arbitration agreement – ‘staying’
1 Architects and collateral warranties/third party rights 227 of court proceedings in favour of arbitration 266
2 What is a collateral warranty? 227 29 The court’s powers exercisable in support of the
3 What are third party rights? 227 arbitration process 266
4 Why have collateral warranties become so important? 228 30 Enforcement of arbitration awards 267
5 Who needs the benefit of collateral warranties? 228 31 The court’s powers to supervise the arbitration process 267
6 Who should provide collateral warranties? 229 32 Appeals on points of law 268
7 Standard forms of collateral warranty 230 33 The architect as arbitrator 268
8 Key clauses of the JCT Standard Forms of Contractor 34 The architect as expert witness 269
Collateral Warranty 230
9 Key clauses of Third Party Rights Schedule in JCT 25 Adjudication 271
Major Project Form, 2005 edition 232 David Friedman QC
10 Sub-contractor collateral warranties 232 1 What is adjudication? 271
2 What is a construction contract? 271
21 The FIDIC contract 235 3 Excluded construction contracts 272
Jeremy Glover 4 The terms required by HGCRA 272
1 Introduction 235 5 Contractual adjudications 272
2 The content of the new FIDIC forms – the standard clauses 235 6 Notice of adjudication 272
3 Claims 237 7 Is there a dispute? 273
4 The engineer’s duties 237 8 Multiple disputes 273
5 Further information 238 9 Does the dispute arise ‘under’ the contract? 273
10 Appointment of an adjudicator 273
22 The Construction Act Payment Rules 239 11 The referral notice 273
Matthew Needham-Laing 12 Procedure after the referral notice 274
1 Introduction 239 13 The response to the referral notice 274
2 Background to the legislation 239 14 Confidentiality 274
3 To which contracts does the HGCRA apply? 240 15 Resignation, revocation and abandonment 274
4 Contracts excluded from the payment provisions 241 16 The decision 275
5 The payment provisions in detail 242 17 Fees and costs 275
6 The right to suspend performance for non-payment 246 18 Enforcement 275
7 ‘Pay when paid’ clauses 246 19 Ineffective defences to enforcement proceedings
8 Interest on late payment of debts 247 in the TCC 275
9 The Construction Act 2009 247 20 Jurisdictional defences to enforcement proceedings 275
21 Natural justice defences to enforcement proceedings 276
Part D: Building dispute resolution 22 Severance 276
23 Getting a final answer 276
23 Litigation 253
Anthony Speaight QC 26 Mediation 277
1 Methods of dispute resolution 253 Christopher Miers
2 Litigation in England and Wales 253 1 Background 277
3 Litigation in Scotland 254 2 The principles 277
3 Typical mediation process in construction disputes 277
24 Arbitration 255 4 Mediation in practice 279
Melanie Willems
1 What is arbitration? 255 27 Building dispute resolution in Scotland 281
2 The relevance of arbitration law to architects 255 Robert Howie
3 The purpose of this chapter 255 1 Arbitration in Scotland 281
4 The Arbitration Act 1996 256 2 Adjudication in Scotland 283
5 The importance of deciding whether a process is or 28 International arbitration 287
is not ‘arbitration’ 256 Tony Dymond and Emelita Robbins
6 The advantages and disadvantages of arbitration 1 Introduction 287
compared with litigation in court 257 2 Factors relevant to the choice of international arbitration 287
7 The arbitration agreement 259 3 The agreement to arbitrate 288
8 The jurisdiction of the arbitration tribunal 259 4 Procedure in international arbitration 289
9 Who decides where the tribunal has jurisdiction? 260 5 Interim measures in international arbitrations 290
10 The composition of the arbitration tribunal 260 6 Evidence in international arbitrations 290
11 The number of arbitrators 261 7 International arbitration awards – recognition,
12 The qualifications of arbitrators 261 challenges and enforcement 291
13 Appointment of the tribunal in multi-party disputes 261 8 Costs in international arbitration 292
14 Prescribing the arbitration procedure 261
15 Other provisions which may be found in arbitration Part E: The architect in practice
agreements 261
16 How to commence arbitration proceedings 262 29 Legal organisation of architects’ offices 295
17 Arbitration procedure or rules 262 Graham Brown
18 The general duty of the parties 262 Scottish Postscript by Gordon Gibb
19 Definition of the issues 262 1 Managing an architectural business 295
20 The exchange of information and evidence 262 2 Partnership 295
21 Evidence of fact and expert evidence 263 3 Limited liability partnerships 298
22 The arbitration hearing 264 4 Companies 299
23 The award 265 5 Premises and persons 302
24 Costs 265 6 Insurance 303
25 The power of the tribunal in the case of a party’s default 265 7 Scottish postscript 304
viii Contents

30 Architects’ contracts with clients 307 6 Exceptions to infringement of architects’

Sarah Lupton copyright 344
1 The appointment 307 7 Infringement 345
2 Agreement of appointment 308 8 Licences 345
3 Termination 308 9 Remedies for infringement 347
4 Ownership 309 10 Industrial designs 348
5 Standard Forms of Agreement for the Appointment of an 11 Moral rights 349
Architect 309 12 Law of copyright in Scotland 350
6 Speculative work and tendering for architects’ services 311
7 Appointments required by statute 312 35 Architects and the law of employment 351
8 Scottish appointments 312 Ruth Downing
1 Introduction 351
31 Architects’ collateral warranties 313 2 Sources and institutions 351
Ann Minogue 3 The contract of employment 352
1 Architects and collateral warranties 313 4 Equal opportunities 354
2 The obligation to provide collateral warranties 313 5 Dismissal 357
3 The terms of collateral warranties: CIC/ConsWa/P&T 314 6 Collective labour relations law 361
4 Practical advice 317 7 Health and safety 362
32 Architects’ liability 319 8 Employment law in Scotland 363
James Cross QC
1 Introduction 319 36 International work by architects 365
2 Other professional liability 319 Richard Dyton
3 Liability for professional negligence 321 1 Introduction 365
4 Scope of the obligation of reasonable care and skill 323 2 Conflicts of laws 369
5 Breach of the obligation of reasonable care and skill: 3 The future 371
pre-construction work stages 326
6 Breach of the obligation of reasonable care and skill: 37 Architects’ registration 373
construction work stages 328 Sarah Lupton
7 Damages 329 1 The nature of professionalism in architecture 373
8 Sharing liability for professional negligence with others 331 2 Architects’ registration 373
9 When liability for professional negligence is barred 3 Eligibility for registration 374
by lapse of time 334
10 Liability in Scots law 334 38 Professional conduct of architects 375
Sarah Lupton and Peter Anderson
33 Architects’ professional indemnity insurance 337 1 Codes of professional conduct 375
James Leabeater 2 ARB Code of Conduct 375
1 Why be insured? 337 3 RIBA Code of Professional Conduct 378
2 Some basic insurance principles 337 4 Statement of Professional Conduct of
3 Professional indemnity insurance policies 338 the Royal Incorporation of Architects in
4 Risk management 339 Scotland (RIAS) 381
34 Copyright 341
Clive Thorne Bibliography 383
1 Copyright 341 Table of statutes and statutory instruments 387
2 Protection under the Copyright, Designs and Patents
Act 1988 342 Table of cases 391
3 Qualification 343 Table of legislation 395
4 Publication 343
5 Ownership 344 Index 401
Editor’s Preface
The aim of this book remains to provide within the compass of
a single volume a statement of the law relevant to an architect in
practice.
No one lawyer could write with authority about so many different
aspects of the law. Each chapter is contributed by an expert in the
particular field. Our authors come from a range of backgrounds –
barristers, solicitors and architects.
The book covers the law of the whole of Britain. In space terms
the law of England and Wales occupies pride of place. But Scots
law is also covered in respect of the many areas of law where it
is different: I am grateful to Angus Stewart QC, of the Scots Bar,
who has advised me as to Scottish authors. In a growing number
of fields the law is the same throughout Britain by reason either of
Westminster statutes or of EU directives.
At the risk of upsetting readers familiar with the order of chapters
in recent editions, I have reordered the material into what I believe
is a more logical arrangement:-
A. General principles of law.
B. The statutory framework: this part of the book encompasses
the statutory authorities, construction, regulations, planning
law, public procurement regulations, party wall legislation and
health and safety law.
C. Building contracts: this covers procurement methods, the
commonly used standard forms of building contract and
Construction Act payment rules.
D. Building dispute resolution: this includes litigation, arbitra-
tion, adjudication and mediation.
E. The architect in practice: this part of the book focusses on
architects’ registration and professional conduct, architects’
own contracts with clients and collateral warranties, and archi-
tects’ liability in negligence; it also covers other aspects of
the law relevant to an architect in practice such as copyright,
employment law and insurance.
One of the changes over the years has been the decline in the popu-
larity of the JCT forms. Once upon a time, any building contract
of any formality would be likely to be on the conditions of one of
the JCT family of forms. Partly as result of the complexity of JCT
1980 and its successors, other forms have come to be used, such
as the Association of Consultant Architects’ forms. Today the most
important of these rival forms are those in the NEC family. At the
same time new procurement methods – management contracting,
design-and-build, and so on – have replaced the simplicity of the
traditional arrangement. These changes are reflected by the inclu-
sion in this book for the first time of a chapter on the topic of pro-
curement methods, and by a chapter of its own being accorded to
the NEC form. None of that prevents the May 2009 revision to JCT
2005 receiving detailed coverage.
While this new edition was in the course of preparation the govern-
ment introduced into Parliament significant statutory changes by its
Local Democracy, Economic Development and Construction Bill.
It received royal assent in the final days of work on the revisions
to this edition. I am grateful to the authors of chapters affected for
so valiantly coping with the need to re-write parts of their text to
incorporate changes made by the Act. However, these provisions
are not expected to come into force until well after this book is
published, so the old law will continue to be relevant for a little
time to come.
The commencement of the UK Supreme Court in October 2009
provides a new focal point at the apex of our judicial system, whilst
the ratification of the Lisbon Treaty may herald fresh changes from
European institutions. Meanwhile architects may have more direct
concern to study the 2010 ARB code.
Another change has been the growth of interest amongst architects
in international work. Therefore, we have included two other new
chapters to reflect this interest – one on the FIDIC form, and the
other on arbitrations at the International Chamber of Commerce.
In fact, at the end of the task of assembling this ninth edition,
I find that there are more new chapters, and more new authors,
in this edition than in any of the previous revisions.
This book is not intended to turn architects into fully fledged
legal advisers. What we hope is that it will identify for architects
the legal issues affecting their work, and alert them to the circum-
stances in which legal advice is necessary. Unrealistic as many of
us may consider the law’s standard to be, the hard reality is that
judges expect architects either to know a good deal of law them-
selves, or else regularly to call on legal advice. In Rupert Morgan v
Jervis (2003) the Court of Appeal held that an architect might com-
mit a negligent breach of duty if he failed to inform a client when a
Construction Act withholding notice was needed.
It was a similar story in West Faulkner Associates v London Borough
of Newham (1994). An architect’s interpretation of ‘regularly and
diligently’ in the JCT contract was different from that of the judges.
The Court of Appeal said he would have been ‘fireproof ’ if he had
taken legal advice; but he had not, so he was not, and a heavy judg-
ment against him for professional negligence was the result.
Anthony Speaight
4 Pump Court, Temple, London
ix