The Claimants advanced a claim for the allegedly negligent provision of architectural services. It asserted inadequate designs in respect of moisture protection to the CLT roof panels and claimed remedial costs totalling £4,405,403.

The claim failed. The Judge found that the scope of the Architect's duties did not extend in the manner contended for by the Claimant. We explore the reasons for this below and consider the wider implications of the Judgment.

The parties

The Defendant Architect was appointed by the Claimant via a written contract as "Architect, Design Team Leader and Principal Designer" to provide architectural services in relation to the construction of the facility. The scope of its services were outlined in a schedule to the contract and the Defendant undertook to use reasonable skill and care and also to co-ordinate the design works.

The following parties were also appointed:

• JCA Concept Construction Limited ("JCA") as Construction Manager was responsible for: reviewing designs produced and advising on their feasibility/sustainability for construction, management and control of the site including maintaining overall programme, ensuring adequate steps were taken to protect the works and complying with the Claimant's instructions as well as issuing instructions to Hess and Stoneleigh.

• Hess Timber GmbH and Co ("Hess") as the timber frame contractor was required to: complete detailed designs of the timber frame, protect the works, ensure that moisture testing was carried out on site, co-ordinate with JCA and Stoneleigh and comply with instructions issued by JCA.

• Stoneleigh Services Limited ("Stoneleigh") as the roofing contractor was required to: complete detailed designs of the roof covering, protect the works, co-ordinate with JCA and Hess and comply with instructions issued by JCA.

Key issues

The Judge grappled with the following principal questions:

1. What was the scope of the Architect's duties in light of the appointment of the parties and their respective obligations?

2. Did the Architect breach its duties by:

2.1 Failing to produce a Moisture Content Control Plan (MCCP) or risk assessment?

2.2 Failing to identify that Hess' tender contained no adequate moisture protection during construction?

2.3 Failing to take appropriate steps in response to the CLT being exposed to sustained rainfall around Christmas 2016?

Scope of duty

The Judge held the Architect was under a duty to provide design information, but that Hess completed the detailed design of the timber frame and Stoneleigh complete the detailed design of the roof coverings. In essence, this was on account of the contractual provisions entered into by those parties.

Similarly, the Architect owed a duty to co-ordinate designs, but not the programme of the other parties.

Importantly, it was found that the Architect did not owe a duty to protect the Trade works during their construction and that this was the responsibility of Hess and Stoneleigh respectively who were also obliged to exercise reasonable care and skill to satisfy the performance requirements of the Defendant's Timber Frame Combined specifications (which stipulated criterion for protection works, adverse weather working and membrane work).

Alleged breaches of duty

The alleged breaches were subject to extensive input from the Claimant and Architect's respective experts: Ms Hoey and Mr Potter. The Judge felt that Mr Potter had sufficient experience to deal with the technical evidence and overall preferred his evidence that of Ms Hoey.

As part of the allegation that the Architect failed to produce an MCCP it was stated that it ".. would and/or should have concluded that the only reliable and effective way to protect the…. flat roof CLT panels during the construction phase was to erect a temporary shelter over the works".  It was common ground between the parties' expert that there was no mandatory requirement to produce an MCCP and that the specifications produced by the Architect functioned as an effective moisture plan. Further, Ms Hoey conceded that had this specification been followed by Hess and/or Stoneleigh "there would have been no water anywhere near the timber".

In respect of the temporary shelter over the works, the Claimant sought to assert that the facility was 'exceptional' for the purposes of BS 6229:2003. On this point the Judge preferred Mr Potter's evidence that the building was not 'exceptional' and therefore a temporary roof cover was not the only viable and effective way to protect the CLT roof panels. As part of this, the Judge (possibly surprisingly) accepted Mr Potter's evidence that timber buildings were not inherently riskier than those made of brick and building in winter was not risker than building in summer.

Accordingly, the Judge found that the Architect did not have an obligation undertake an MCCP or risk assessment and the combined specifications produced were suitable (if complied with).

In respect of the alleged failure to identify that Hess' tender contained no adequate moisture protection, the Judge found that the Architect had an extremely limited role in considering the tenders and was not required to review and report upon Hess' tender.

As to the alleged failure by the Architect to take appropriate steps in response to the CLT being exposed to sustained rainfall, this comprised of four parts, three of which are of note:

• The Architect should have advised Stoneleigh/ JCA/ the Claimant not to install the Vapour Control Layer ("VCL") in existing wet conditions: on the basis of the factual evidence, the Judge found this allegation failed because "everyone knew the VCL should not be installed in wet conditions".

• The Architect should have instructed and/or advised the Claimant/JCA that moisture levels of the CLT should be tested: The Judge found that this allegation failed on the basis that the Architect had been told that the "moisture content has been continuously monitored by Plotfrom on site and is currently 12%".

• The Architect should have instructed and/or advised the Claimant/JCA that a temporary cover should be constructed: this allegation failed on the basis that the Judge preferred the Defendant's factual witness testimony that there was a discussion regarding a temporary canopy to allow drying out but the Claimant did not agree to it.

Commentary

This case highlights that where a Construction Manager and Trade Contractors have been appointed "The Architects duty is normally confined to stipulating the final permanent result required and if this has already been done, the Architect is under no further duty to assist….". The Judge was clear in this case that the Claimant's decision to appoint a Construction Manager with Trade Contractors was important and gave raise to (necessary) consideration of the contractual obligations of the other parties appointed, shaped and limited the Architects duty to the Claimant.

It also serves to re-affirm, when considering scope of duty, Lord Justice Coulson's expressed view in Rushbond PLC v The JS Desing Partnership LLP Services LTD [2021 EWCA Civ 1889] and URS Corporation Ltd v BDW Trading LTD [2024] 2WLR 181 that the six stage test set out in Manchester Building Society v Grant Thornton UK LLP [2022] AC 783 is a helpful checklist, but is primarily designed to analyse duties of care in novel situations. It is not intended to displace consideration of contractual obligations, where those agreements have been negotiated and agreed via standard industry practices or convention. In this case, the work had been procured via a construction management contract with a Construction Manager and Trade Contractors, which the Judge held to be "fairly standard practice in the construction industry and is certainly not an unusual or novel method of procuring construction work".

In practical terms, this case also serves as a reminder that these types of cases are won and lost on the technical evidence. It is crucial that appointed experts are sufficiently experienced to give evidence on the main technical issues of your case. One is compelled to observe: a great job by the Architect's expert to convince the Judge that no distinction need be made between weather in winter and summer, and that timber is no more vulnerable than masonry. Chapeau.