International Construction Law Review
DESIGN LIABILITY: PROBLEMS WITH DEFINING EXTENT AND LEVEL
Professor Sarah Lupton1
MA, DipArch, LLM, RIBA, FCIArb, CArb
In modern procurement there are many contributors to the design process, and it is important that the related contracts delineate their roles precisely. Clear allocation of decision-making depends on the specification and other documents tying in with the contractual provisions, and on subsequent behaviour reflecting what was anticipated in the package. All too often, perhaps because of shortage of time, insufficient care is given to finalising these key documents.
This article2 explores cases where the extent or level has not been clearly set out, sometimes with unexpected results. The projects covered are of varied scale, but all involve some allocation of design responsibility to the contractor and provide useful lessons for those involved in drafting tender packages.
EXTENT OF LIABILITY
The following three cases all concern contracts based on a JCT standard form contract intended for “traditional” procurement (i.e. where the majority of the construction information is provided by the client’s consultant team) but which also allows for a certain amount of contractor or sub-contractor design input.3 The device used to incorporate this input is the “Contractor’s Designed Portion” (CDP),4 the provisions of which effectively reproduce the relevant provisions of a JCT design-build contract within the overall traditional framework. For example, in the JCT Standard Building Contract 2011, the design element is brought in through recitals
1 Sarah Lupton is a partner in Lupton Stellakis, architects, and holds a personal chair at Cardiff University. She is author of Which Contract? and a series of books on the JCT and RIBA standard forms of contract, published by RIBA Publishing. She has also completed the 5th Edition of Cornes and Lupton’s Design Liability in the Construction Industry, published by Wiley-Blackwell.
2 This article is developed from a much shorter one briefly outlining four of the cases. It appeared in the NBS National Construction Contracts and Law Survey 2015. It can be downloaded at www.thenbs.com/pdfs/nbs-contracts-and-law-report-2015.pdf
3 The above NBS report noted that traditional procurement remains the method used most often in the UK, although in decline; in 2011, 59% of responding clients used it most often, in 2012 this declined to 57%; in 2014 it was 53%. JCT standard forms are the most commonly selected, but with less of a lead than in previous years.
4 17% of respondents in the above survey identified the CDP as a cause of dispute on projects.
Pt 2] Design Liability: Problems with Defining Extent and Level
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