Architect's Legal Handbook, Eighth Edition

450 Pages·2004·10.06 MB·English

by  Anthony Speaight

Architect’s Legal Handbook
i
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Architect’s Legal Handbook
The Law for Architects
Eighth edition
Edited by
Anthony Speaight QC (Editor)
Gregory Stone QC (Consultant Editor)
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
An imprint of Elsevier
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First published 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
Copyright © 2004, Elsevier Ltd.
Except Chapter 23 © Sir Desmond Heap. All rights reserved.
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Contents
Editor’s preface ix 5 Introduction to Scots law 41
Peter McCormack
Acknowledgements x
1 Law and Scotland 41
List of contributors xi 2 Sources 41
3 Courts and the legal profession 42
4 Branches of the law 43
Part One General principles of law
6 Scots land law 45
1 Introduction to English law 3 Angus Stewart QC
Anthony Speaight QC 1 Introduction 45
1 The importance of law 3 2 Title to heritage and title conditions 45
2 Sources of law 3 3 Other restrictions on heritable property 48
3 Legal history 4 4 Sale of land and buildings 49
4 The legal systems of the United Kingdom 6
5 The scheme of this book 6 7 Introduction to Northern Ireland’s legal system 51
Jonathan L. Dunlop and Brian Sherrad
2 The English law of contract 9 1 Background 51
Alaxander Hickey 2 Northern Ireland’s constitutional history 51
1 Introduction 9 3 The courts and the judiciary 51
2 Scope of the law of contract 9 4 The legal profession 52
3 What is a contract? 9 5 Sources of law 52
4 Intention to create legal relations 10 6 Limitation periods 52
5 Consideration 10 7 Contract law in Northern Ireland 52
6 Agreement 11 8 Law of tort in Northern Ireland 53
7 Terms of a contract 12 9 Northern Ireland land law 53
8 Exclusion clauses, UCTA, and the Unfair Terms
in Consumer Contracts Regulations 1999 14
9 Standard term contracts 15 Part Two The law of building contracts
10 Misrepresentation 15
8 Introduction to building contracts 59
11 Performance and breach 16
Anthony Speaight QC
12 Privity of contract 17
1 The nature of building contracts 59
13 Agency 19
2 History of the Joint Contracts Tribunal 59
14 Limitation under the Limitation Act 1980 20
3 The JCT family of forms 59
3 The English law of tort 21 4 Building contracts in Scotland 61
Vincent Moran 5 Building contracts in Northern Ireland 63
1 Introduction 21
9 The JCT Standard Form of Building Contract,
2 Negligence 21
1998 edition 65
3 The Defective Premises Act 1972 26
Muhammed Haque
4 Nuisance 26
1 Articles of Agreement 65
5 The rule in Rylands v Fletcher 27
Part 1 Conditions: General 66
6 Trespass 28
2 Clause 1: Interpretation, definitions, etc. 66
7 Breach of statutory duty 28
3 Clause 2: Contractor’s obligations 71
8 Inducing breach of contract/wrongful inference
4 Clause 3: Contract sum – additions or deductions –
with contract 29
adjustment – interim certificates 73
9 Limitation periods 29
5 Clause 4: Architect’s/contract administrator’s instructions 73
10 Remedies 30
6 Clause 5: Contract documents – other documents –
11 Apportionment of liability 30
issue of certificates 75
12 Conclusion 30
7 Clause 6: Statutory obligations, notices, fees and charges 75
4 English land law 31 8 Clause 6A: Provisions for use where the Appendix
Martin Dixon states that all the CDM Regulations apply 75
1 Land law and conveyancing distinguished 31 9 Clause 7: Levels and setting out of the works 75
2 The extent and meaning of ‘land’and instrusions upon it 33 10 Clause 8: Work, materials and goods 75
3 Easements 35 11 Clause 9: Royalties and patent rights 81
4 Restrictive covenants 37 12 Clause 10: Person-in-charge 81
5 Landlord and tenant 38 13 Clause 11: Access for architect to the works 81
6 Surveys of property to be purchased 39 14 Clause 12: Clerk of works 81
7 Mortgages 39 15 Clause 13: Variations and provisional sums 84
8 Business tenancies – architects’offices 39 16 Clause 13a: Variation instruction – contractor’s
9 Estoppel 40 quotation in compliance with the instruction 91
v
vi Contents
17 Clause 14: Contract sum 91 8 Key Clauses of Third Party Rights schedule in JCT
18 Clause 15: Value added tax – supplemental provisions 91 Major Project Form 2003 edition 190
19 Clause 16: Materials and goods unfixed or off-site 91
20 Clause 17: Practical completion and defects liability 95 12 Payment rules 191
21 Clause 18: Partial possession by employer 96 Matthew Needham-Laing
22 Clause 19: Assignment and sub-contracts 97 1 Introduction 191
23 Clause 20: Injury to persons and property and 2 Background to the legislation 191
indemnity to employer 99 3 To which Contracts does the Act apply? 192
24 Clause 21: Insurance against injury to person or property 100 4 Contracts excluded from the payment provisions 194
25 Clause 22 to 22FC: Insurance of the works 102 5 The payment provisions in detail 195
26 Clause 23: Date of possession, completion and 6 The right to suspend performance for non-payment 197
postponement 102 7 ‘Pay when paid’clause 197
27 Clause 24: Damages for non-completion 102
28 Clause 25: Extension of time 110
Part Three Dispute resolution
29 Clause 26: Loss and expense caused by matters
materially affecting regular progress of the works 116 13 Litigation 201
30 Clause 27: Determination by employer 118 Anthony Speaight QC
31 Clause 28: Determination by contractor 123 1 Methods of dispute resolution 201
32 Clause 28A: Determination by employer or contractor 126 2 Litigation in England and Wales 201
33 Clause 29: Works by employer or person employed 3 Litigation in Scotland 202
or engaged by the employer 126 4 Litigation in Northern Ireland 202
34 Clause 30: Certificates and payments 126
35 Clause 31: ICTA 1988 – statutory tax deduction 139 14 Arbitration 203
36 Clause 34: Antiquities 141 Melanie Willems
Part 2 Conditions: Nominated sub-contractors and 1 What is Arbitration? 203
nominated suppliers 141 2 The relevance of arbitration law to architects 203
37 Clause 35: Nominated sub-contractors 141 3 The purpose of this chapter 203
38 Clause 36: Nominated suppliers 152 4 The arbitration Act 1996 203
Part 3 Conditions: Fluctuations 155 5 The importance of deciding whether a process is or
39 Clauses 37 to 40 155 is not ‘arbitration’ 204
Part 4 Conditions: Settlement of disputes – 6 The advantages and disadvantages of arbitration
adjudication – arbitration – litigation 156 compared to litigation in court 205
40 Clauses 41A, 41B, 41C 156 7 The arbitration agreement 206
Part 5 Conditions: Performance specified work 157 8 The jurisdiction of the arbitration tribunal 206
41 Clause 42 157 9 Who decides if the tribunal has jurisdiction? 207
42 Appendix 164 10 The composition of the arbitration tribune 207
11 The number of arbitrators 207
10 Other standard forms of building contract 169 12 The qualification of arbitrators 208
Alexander Hickey 13 Appointment of the tribunal in multi-party disputes 208
1 Introduction 169 14 Prescribing the arbitration procedure 208
2 JCT documents for entering into nominated sub-contracts 169 15 Other provisions which may be found in arbitration
3 The Nominated Sub-Contract Conditions (NSC/C agreements 208
1998 edition) 171 16 How to commence arbitration proceedings 208
4 JCT Standard Form of Domestic Sub-Contract 17 Arbitration procedure or rules 209
2002 (DSC) 175 18 The general duty of the parties 209
5 JCT Intermediate Form of Building Contract (IFC 98) 176 19 Definition of the issues 209
6 JCT Minor Works Agreement 1998 (MW 98) 177 20 The exchange of information and evidence 209
7 JCT Building Contract for a Homeowner/Occupier 2002 177 21 Evidence of fact and expert evidence 209
8 JCT Conditions of Contract for Building Works of 22 The arbitration hearing 210
a Jobbing Character (JA/C 90) 179 23 The award 211
9 JCT Standard Form of Measured Term Contract 1998 179 24 Costs 211
10 JCT Standard Form of Building Contract with 25 The power of the tribunal in the case of a party’s default 211
Contractor’s Design 1998 (CD 98) 179 26 Arbitration procedures found in construction
11 JCT 98 Contractor’s Designed Portion industry cases 211
Supplement 1998 (CDPS 98) 180 27 The role of the courts in arbitrate proceedings 212
12 JCT Major Project form 2003 (MPF) 180 28 Powers to enforce the arbitration agreement –
13 JCT Standard Form of Management Contract 998 ‘staying’of court proceedings in favour of arbitration 212
edition (MC 98) 182 29 The court’s powers exercisable in support of the
14 GC/Works/1 (1998 edition) 182 arbitration process 212
15 ACA Form of Building Agreement 1982 30 Enforcement of arbitration awards 213
(third edition 1998) 183 31 The court’s powers to supervise the arbitration process 213
16 The NEC Engineering and Construction Contract 183 32 Appeals on points of law 213
33 The architect as arbitrator 214
11 Contractor and sub-contractor collateral warranties 185 34 The architect as expert witness 214
Ann Minogue
1 Architects and collateral warranties 185 15 Adjudication 217
2 What is a collateral warranty? 185 Andrew Bartlett QC and Kim Franklin
3 Why have collateral warranties become so important? 185 1 The nature of adjudication 217
4 Who needs the benefit of collateral warranties 186 2 Construction contract 217
5 Who should provide collateral warranties? 187 3 Compliance with section 108 217
6 Standard forms of collateral warranty 188 4 Existence of dispute 217
7 Key clauses of the JCT Standard Forms of 5 Notice of adjudication 218
Main Contractor Warranty 188 6 Adjudicator’s powers and duties 218
Contents vii
7 Adjudicators immunity 218 2 Building (Scotland) Acts 1959 and 1970 272
8 Effect of adjudicator’s decision 218 3 Building Standards (Scotland) Regulations
9 Adjudication under the Scheme for Construction Contracts 218 and subsequent amendments 1993–2002 276
10 Referral notice 218 4 Other national legislation affecting building 280
11 Adjudicator’s powers and duties 219 5 General 282
12 Effect of adjudicator’s decision 219
13 Costs and fees 219 23 Planning law in England and Wales 285
14 Enforcement of adjudicator’s decisions 219 Andrew Fraser-Urquhart
15 Summary judgment 219 1 Introduction 285
16 Challenging the adjudicator’s decision or jurisdiction 220 2 Local planning authorities; or who is to deal
17 Effect of defences and cross-claims not considered with planning applications? 287
by adjudicator 220 3 The meaning of development 288
18 Where adjudicator’s decision final 220 4 Control of development in general 289
19 Practical importance of jurisdictional issues 220 5 Buildings of special architectural or historical
20 Initial jurisdiction: the 10 conditions 220 interest – listed buildings 293
21 Straying from the confines of the dispute 220 6 Urban Development Corporations; enterprise zones;
22 Errors of law 220 simplified planning zones 295
23 Procedural irregularities 221 7 Enforcement of planning control 297
24 Unreasonableness or bad faith 221
24 Planning law in Scotland 299
16 Mediation 223
Steven L. Stuart
Christopher Miers
1 Introduction 299
1 Background 223
2 General 299
2 The principles 223
3 The planning authority 299
3 Typical mediation process in construction disputes 223
4 Development 300
4 Mediation in practice 225
5 Control of development 300
17 Building dispute resolution in Scotland 227 6 Listed buildings 302
Robert Howie 7 Enterprise zones and simplified planning zones 303
1 Arbitration in Scotland 227 8 Enforcement of planning control 303
2 Adjudication in Scotland 229
25 Planning law in Northern Ireland 305
18 Building dispute resolution in Northern Ireland 233 William Orbinson
Brian Speers and Ferguson Bell 1 Introduction 305
1 Adjudication 233 2 Who is to deal with planning applications? 306
2 Arbitration 233 3 The meaning of development 306
3 Other forms of dispute resolution 233 4 Control of development in general 307
5 Listed buildings 309
6 Urban Development corporations; Enterprise Zones;
Part Four Statutory framework and regulation
Simplified Planning Zones 309
19 Statutory authorities in England and Wales 237 7 Enforcement 309
Robert White
1 Local government 237 26 Party walls 311
2 Other statutory bodies 240 Graham North
3 Statutory undertakers: connections to services 241 1 The Party Wall etc. Act 1996 311
4 Private streets 244 2 Definitions 311
5 Grants 244 3 Notices 311
6 Housing associations and societies 245 4 The surveyors 312
7 Special premises 245 5 The award 312
6 The building owner’s rights 313
20 Statutory authorities in Scotland 249 7 Boundary structures in Scotland 315
Angus Stewart QC
1 Introduction: government in Scotland 249
27 European Union law affecting architects 317
2 Connection to services 250
His Honour Judge Andrew Geddes and Clare Potter
3 Private streets and footpaths 251
1 The European Union and its institutions 317
4 Grants 251
2 The founding treaties 317
5 Housing associations 252
3 Public procurement 319
6 Special considerations 252
4 Technical harmonization and standards 330
5 Right of establishment and freedom to provide
21 Construction Legislation in England Wales 255
services – the Architects Directive 85/384 EEC 331
Oliver Palmer
6 The product Liability Directive 85/374 IEEC and
1 Building Acts and Regulators 255
the Consumer Protection Act 1987 331
2 The Building Regulations 2000 256
7 Safety and health at work 332
3 Control of building work other than by the
local authority 264
4 Exemptions form control 264 28 Health and safety law affecting architects 335
5 Other controls under the Building Act 264 Richard Dyton
6 Local legislation in inner London 265 1 Introduction 335
7 Local legislation outside inner London 266 2 Existing health and safety position 335
8 Other national legislation 266 3 Construction (Design and Management)
Regulations (CDM) 338
22 Construction regulations in Scotland 269 4 Summary and practical considerations 340
Peter Franklin 5 Health and safety law in Scotland 341
1 Introduction 269 6 Health and safety law in Northern Ireland 341
viii Contents
Part Five The architect in practice 3 Qualification 381
4 Publication 382
29 Legal organization of architects’offices 345 5 Ownership 382
Graham Brown 6 Exceptions from infringement of architects’copyright 383
1 Managing an architectural business 345 7 Infringement 383
2 Partnership 345 8 Licences 384
3 Limited liability partnerships 348 9 Remedies for infringement 386
4 Companies 348 10 Industrial designs 386
5 Premises and persons 351 11 Moral rights 388
6 Insurance 353 12 Law of copyright in Scotland 388
13 Law of copyright in Northern Ireland 388
30 Architects’contracts with clients 355
Sarah Lupton
35 Architects and the law of employment 389
1 The appointment 355
Ruth Downing
2 Agreement of appointment 356
1 Sources and institutions 389
3 Termination 356
2 The contract of employment 390
4 Ownership 357
3 Equal Opportunities 391
5 Standard Forms of Agreement for the Appointment
4 Dismissal 393
of an Architect 357
5 Collective labour relations law 397
6 Speculative work and tendering for architects’services 359
6 Health and safety 397
7 Appointments required by statute 359
7 Employment law in Scotland 399
8 Scottish appointments 360
31 Architects’collateral warranties 361 36 International work by architects 401
Ann Minogue Richard Dyton
1 Architects and collateral warranties 361 1 Introduction 401
2 The obligation to provide collateral warranties 361 2 Conflicts of laws 404
3 The terms of collateral warranties: CIC/ConsWa/P&T 362 3 FIDIC (Federation Internationale des
4 Practical advice 365 Ingenieurs Conseils) 407
4 The future 407
32 Architects’liability 367
Kim Franklin and Rachel Toulson 37 Architects’Registration 409
1 Introduction 367 Sarah Lupton
2 Liability for breach of contract 368 1 The nature of professionalism in architecture 409
3 Liability for the tort of negligence 371 2 Architects’Registration 409
4 Liability in contract and in tort compared and contrasted 372 3 Eligibility for registration 410
5 Statutory liability 372
6 Measure of damages 373 38 Professional conduct of architects 411
7 When liability is barred by lapse of time 374 Sarah Lupton
8 Liability in Scots law 374 1 Codes of professional conduct 411
2 ARB Code of Conduct and Practice 411
33 Architects’professional indemnity insurance 375 3 The RIBA Code of Professional Conduct 414
James Leabeater 4 Statement of Professional Conduct of the Royal
1 Why be insured? 375 Incorporation of Architects in Scotland (RIAS) 416
2 Some basic insurance principles 375 5 Statement on Professional Conduct of the
3 Professional indemnity insurance policies 376 Royal Society of Ulster Architects (RSUA) 417
4 Risk management 377
Bibliography 419
34 Copyright 379
Clive Thorne and Amanda Telfer Table of statutes and statutory instruments 421
1 The basic rules of copyright 379
Table of cases 425
2 Protection under the Copyright,
Designs and Patents Act 1988 381 Index 429
Editor’s Preface
The aim of this book remains to provide within the compass of a sin- procedures have to be considered. The first step is to serve requisite
gle volume a statement of the law relevant to an architect in practice. pieces of paper, of which a prime example is the withholding notice
required for some purposes by the Housing Grants Construction
No one lawyer could write with authority about so many different and Regeneration Act. Next might come the whirlwind process of a
aspects of the law. Each chapter is contributed by an expert in the 28-day adjudication. A party dissatisfied with the adjudicator’s
particular field. Our authors come from a range of backgrounds – decision may then refuse to pay and fight the enforcement process
judges, barristers, solicitors, architects, and building control officers. in the Technology and Construction Court. Whether enforced or
Many contributors carry on responsibility for a chapter from edition not, the adjudication decision is of only ‘temporary finality’and the
to edition. A few, though, are on the occasion of each new edition whole issue can be refought in litigation or arbitration. But by now,
unable to continue, sometimes for the most illustrious of reasons. if not before, the parties will probably try to reach a mutually
For this 8th edition we welcome several new lawyer and architect acceptable outcome by mediation. The importance of all these pro-
authors: Christopher Miers RIBA, chairman of the Society of cedures is such that there is now a distinct section of the book
Construction Law; Oliver Palmer FRIBA, who was responsible for devoted to them – Part 3: Dispute Resolution. This contains a full
recasting the Building Regulations; Ruth Downing, a barrister chapter devoted to adjudication with its rapidly growing case-law.
expert in employment law; James Leabeater, barrister; Melanie There is a completely new chapter on mediation. There are also new
Willems, of the international law firm Lovells; and Sarah Lupton chapters on dispute resolution in Scotland and Northern Ireland.
RIBA, of the University of Wales.
This book is not intended to turn architects into fully fledged legal
The book covers the law of the whole of the United Kingdom. In space advisers. What we hope is that it will identify for architects the
terms the law of England and Wales occupies pride of place. But Scots legal issues affecting their work, and alert them to the circum-
law is also covered in respect of the many areas of law where it is stances in which legal advice is necessary. Unrealistic as many of
different. In addition Northern Ireland’s law is also explained in areas us may consider the law’s standard to be, the hard reality is that
where it diverges from English law. Some fields of law, such as EU judges expect architects either to know a good deal of law them-
law, are common for the whole of the United Kingdom. selves, or else regularly to call on legal advice. In Robert Morgan v
Jervis (2003) the Court of Appeal held that an architect might com-
I am grateful to Angus Stewart QC, of the Scots Bar, who has advised mit a negligent breach of duty if he failed to inform a client when a
me as to Scottish authors, and to Sir Richard McLaughlin, now a Construction Act withholding notice was needed.
High Court judge in Northern Ireland, who marshalled the team of
authors from Northern Ireland. It was a similar story in West Faulkner Associates v London Borough
of Newham (1994). An architect’s interpretation of ‘regularly and
Although the pace of change of substantive law has slightly slowed, diligently’in the JCT contract was different from that of the judges.
the years since the last edition have seen a complete revolution in The Court of Appeal said he would have been ‘fireproof’if he had
the manner in which disputes are resolved. Formerly if someone taken legal advice; but he had not, so he was not, and a heavy judg-
wanted to make a claim against another person he went to court or, ment against him for professional negligence was the result.
if there was an arbitration agreement, the dispute was arbitrated.
The pace was measured, the emphasis on ensuring that each side Anthony Speaight
had a fair chance to put its case. Today a number of quite new 4 Pump Court, Temple
ix