The decision in
Background
Donkeys and trams have been a feature of the
In
In this briefing note we consider a range of important issues for practitioners arising out of HHJ Davies judgment, including: (i) the interpretation of design life obligations; (ii) contribution between specialist subcontractors and a lead designer architect; and (iii) the perils of instructing experts on too narrow a basis.
Design Life
The central contractual issue was whether the cold formed steel components used as part of the framework of the Depot were required to have a design life of 50 years, or 25 years. However, that apparently straightforward choice masked a number of complex sub-issues, which the judgment addresses in depth.
The key obligation was found in section 2.3.5 of the Works Information. It provided that the design for all elements of the Works must "unless otherwise specified in the Functional Procurement Specification, have a design life of at least 20 years." The Functional Procurement Specification did specify an alternative design life of 50 years for the "Building Structure," and a further design life of 25 years for the "External Shell". There was substantial argument at trial about the proper interpretation of these expressions, within the particular contractual context of the case.
The Judge held that the "Building Structure" did not include the cold formed components which
As a result, the design life requirement for the cold formed components was 25 years. But what does "design life" actually mean?
Design life was not an expression defined by the contract documents. The Judge referred to two British Standards1 and concluded that design life is to be judged by reference to the performance requirements which the building element is intended to achieve, together with the ability of that element to meet those requirements with anticipated maintenance, but without major repair being necessary. He noted: "It cannot realistically be thought that a structure should be intended to be maintenance free for the whole of its design life, whereas it can reasonably be assumed that it ought not to need major repairs over that period."
Therefore, anticipated maintenance is a key ingredient in the attainment of design life. This is an important point for practitioners to remember when analysing design life obligations, and when making or considering allegations that such obligations have been breached. The judgment contains further helpful commentary on the distinctions between ordinary maintenance, cleaning, and major interventions.
Having defined design life in this way, the Judge then had to determine the content of
All parties referred the Judge to the
The
- Was it a contractual term that the design of the foundations was such that they would have a lifetime of 20 years; or
- Was it a contractual term that took effect as an absolute warranty that the foundations would last 20 years without replacement?
It can be seen that the first formulation focussed on the capability of the design to achieve a particular level of performance, and the second focussed upon the actual performance of the design once constructed. The
These were obiter remarks, but of high authority. The Judge in the instant case likewise favoured the
The Judge noted that on the right facts, this might allow a designer or design contractor to argue that a particular building element would never in fact reach its design life, regardless of the suitability of the design tendered - with the result that a breach of a design life obligation might cause no loss (as the structure or element would always have prematurely failed). This issue did not arise in the instant case, but it is a very interesting point for development on the right facts in a future dispute.
What was in issue was whether the obligation to provide a design for the cold formed components such that that they would have a lifetime of 25 years was a strict obligation, or one which only required the lower standard of the exercise of reasonable skill and care. The Judge found, applying
This is an important finding for subcontractors whose contracts include the standard designer's duty of reasonable skill and care. It is likely to require clear wording for such duty to be held to limit or qualify an obligation to tender a design that achieves a design life of a specified duration. On the other hand, it is difficult to conceive of many situations where failure to achieve a strict design life requirement would not also be a breach of the duty of reasonable skill and care.
Contribution between specialist designers and a lead designer architect
After an exhaustive consideration of the detailed technical evidence, the Judge rejected the claims that excessive corrosion was occurring and that the design life for the cold formed components would not be met. The Judge thus vindicated the design of the cold formed components. However, he considered the question of contribution liability if, contrary to his findings, he had found the design to have been inadequate. In this obiter context, the judgment contains interesting comments on the apportionment of responsibility between the architects (RPS) and specialist subcontractors (
In light of RPS's narrower contractual obligations (RPS had not entered into a back-to-back contract with
However, the Judge stated that if he had found the steelwork provided would not meet its 25-year design life, he had no doubt that breach of duty would have been established against RPS. RPS had prepared the tender design log, which included an assumed galvanised coating loss rate. This assumed rate was subsequently replicated in the structural steelwork specification and was provided to
However, balancing all factors, the Judge concluded that
Expert Instructions
A key message for practitioners throughout the judgment is the importance of ensuring that technical experts are not constrained only to consider the contractual interpretation pursued by their instructing party. The Judge was critical of
The importance of gathering sufficient technical evidence before initiating proceedings was also emphasised. The Judge found that
The Judge accepted that the court should not insist on evidence which it is unreasonable to expect to be provided. However, in circumstances where the claim pursued was very substantial in value and had been known to
Footnotes
1 BS ISO 15686-1:2000, Buildings and Constructed Assets - Service Life Planning; and BS EN 1990:2002, entitled "Basis of Structural Design"
Originally published
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr
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