10/04/2018
These days, the skills involved in completing a 1,000 piece jigsaw over Christmas are exactly the skills needed to decipher various professional roles in construction developments. Whilst never simple enterprises, until not so long ago, professional indemnity claims in construction matters were relatively clear-cut.
The norm was a traditional construction project; the roles were limited and defined. However, the rise of design and build contracts as the new ‘norm’ has led to a rise of newer professional positions. Professionals now carry out a range of roles, including lead designer, lead consultant, project manager (PM), BIM co-ordinator and principal designer/principal contractor. This had led to increasing numbers of claims alleging breaches of duty in those varied roles. It is not always easy to define the duties in such roles. There is no extensive body of case law; but there are some pointers.
Determining duties
As with any area where duties are developing, the approach that the court will take cannot be anticipated with certainty. However, three main sources will be considered when determining the duties of professionals carrying out these developing roles:
The emphasis within that trinity of sources will vary for different roles and projects.
The jigsaw
The duties of a PM are perhaps the easiest to identify. There is some good judicial commentary on how a court might interpret a PM’s role. In Royal Brompton Hospital NHS Trust v Hammond [2003] the court reflected that project management was (then) still an emerging discipline and that the duties will depend upon the contractual terms; but, importantly, it also stated that a principal element of the PM’s role was to be “co-ordinator and guardian of the client’s interests”.
The court also highlighted that the roles of other professionals in the project will be interpreted in the light of the PM’s role in the specific contract – pieces in the jigsaw need to fit together. Those roles cannot be determined in isolation but have to be viewed as part of the whole jigsaw of responsibilities in the project.
In Ampleforth Abbey Trust v Turner & Townsend Project Management Ltd [2012], the contractual framework was not defined in detail. The defendant was to carry out the role of a PM but little extra relevant detail was agreed between the parties. The court concluded that the role of PM - to co-ordinate and guard the client’s interests (first mentioned in Royal Brompton) - could include offering advice to that client in connection with broad contractual risks.
The duties of a PM remain fluid. They have been the subject of an increasing number of judicial comments and of extensive professional guidance notes which can be contract specific (the role of a PM in an NEC3 project is slightly different to that in a JCT project).
Lack of definition
But what about the position of some less well-defined roles? Do a lead consultant and a lead designer - roles that can be carried out by different professionals - owe the same duties? Whilst the Court of Session confirmed in 2017 (Midlothian Council v Bracewell Stirling Architects) that a lead consultant is not liable for a client’s other consultants and contractors, there is limited authority analysing the role. There is, however, industry guidance concerning these two different but related roles.
The RIBA, the RICS and ACE all publish model lead consultant documents, helping to define the role. It is generally accepted that a lead consultant acts as a conduit, a point of communication between the consultant team and the client. There is a cross over between the lead consultant role and that of the PM, although the latter’s position is more one of representing the client to the consultant team whereas the former’s is to be a point of communication and interface.
There is also an absence of judicial comment on the role of lead designer, but RIBA (and others) have published some helpful material. The lead designer does not shoulder a responsibility for the design of others. That burden stays with those designers. Rather, the role of the lead designer is usually one of co-ordination amongst the design team, to help enable a joined-up approach. Similar approaches and considerations can be applied in relation to the roles of BIM co-ordinators or design co-ordinators.
Comment
With such a variety of professional roles in design and build contracts, there are some common elements to be applied when trying to decipher the duties of a particular ‘non-traditional’ professional. It is apparent that no professional role can be viewed in isolation; rather, one has to be conscious of how all of the separate roles and duties fit together in the jigsaw of the professional team. Of course, the shape of such roles will vary from contract to contract. What the contract says is vital and might offer greater definition of the role. Further, in due course, the body of judicial guidance will increase. Until then, dust off those jigsaws.
Read other items in the Construction and Engineering Brief - April 2018
