Michael Murphy: Architects’ liability – managing risk in an increasingly challenging environment
Michael Murphy, a litigation partner at HOMS Solicitors, writes on liability for breach of care and duty of architects and technicians who certify works under the Building Control (Amendment) Regulations (BCAR).
With the economic recovery unfolding and an increasing focus upon procuring good quality residential and commercial developments, the services of architects are now very much “in demand” again. The concern for architects is that, between new Regulations and recent developments in case law, they also face increasingly difficult challenges in terms of risk management and mitigation.
Building Control (Amendment) Regulations
The purpose of the Building Regulations and Building Control Regulations is to promote good practice in the design and construction of buildings in the interest of the health, safety and welfare of all those who use them. Following the Priory Hall controversy, on 1st March 2014, the Building Control (Amendment) Regulations came into effect. They apply to:
- Construction of a new dwelling;
- Any extension to a dwelling involving a total floor area of more than 40m²;
- Works to which Part III of the Building Control Regulations apply (those requiring a fire safety certificate).
The BCAR requires four certificates at different stages of the construction process:
- Certificates of Compliance for:
- Undertaking by Assigned Certifier;
- Undertaking by Builder; and
- A two-stage Certificate of Compliance on Completion – Part A completed by the builder and Part B by the certifier.
The role of ‘certifier’ accordingly carries significant obligations. The Certificate of Compliance (Undertaking by Assigned Certifier) contains an undertaking by the certifier to use reasonable skill, care and diligence to inspect the building or works and to coordinate the work of others following the implementation of an inspection for compliance with the Building Regulations.
Similarly, Part B on the Certificate of Compliance on Completion requires the certifier to confirm that the inspection plan has been undertaken with reasonable skill, care and diligence and to certify, having exercised reasonable skill, care and diligence, that the building or works is in compliance with the Building Regulations.
BCAR also operates in conjunction with the Code of Practice for Inspecting and Certifying Buildings and Works. The fact that the party providing the certificate is obliged to “certify” means that they must be more definitive in their view that there is compliance with Building Regulations as they may otherwise be liable for damage caused by any errors.
Recent case law
For instance, whilst pre-dating the latest changes, in the recent case of McGee v Alcorn and Friel, the High Court considered the plaintiffs’ claim for damages against an architectural technician who had negligently certified building works; it transpired that the foundations were defective and laid on unsuitable ground. Cracking appeared in the building which required underpinning.
The High Court found in favour of the plaintiffs and awarded them the entirety of the costs of underpinning the foundations, €75,000 in damages for the diminution of value of the property and €25,000 in general damages for distress and inconvenience. The court emphasised that it was fair, just and reasonable that certifiers would be under a duty of care towards such purchasers.
Separately, the Supreme Court has also recently addressed the question of the duration of potential liability in tort for a certifier in the case of Brandley v Deane and Lohan; the foundations were negligently built and certified in 2004, the damage was manifest in late 2005 but the proceedings did not issue until November 2010. The court was asked to consider if the plaintiffs were “out of time”. The court determined that the plaintiffs’ cause of action in tort only accrued when the damage manifested in December 2005 and so they had six years within which to bring proceedings as and from that date such that, when the proceedings were issued in November 2010, they were still within time. This can be contrasted with the discoverability rule in personal injuries cases.
Outlook for architects
In view of the regulatory regime and the above cases, it is clear that any architect certifying works will have to take particular care in demonstrating that they acted with skill, care and diligence in satisfying themselves that it was appropriate to issue the certificate – not least as it may be many years before proceedings issue, depending on when any damage to the property manifests itself.
- Michael Murphy is a litigation partner at HOMS Solicitors. View his profile here.