Construction professionals and duties of inspection

Jonathan Spencer (Managing Associate) and Frances Gordon-Weeks (Associate) of Simmons & Simmons consider the recent ruling in Burgess v Lejonvarn specifically in relation to the key guidance on duties of inspection.

In Burgess v Lejonvarn [2018] EWHC 3166 (TCC) the claimants failed in every aspect of their breach of duty claim against the defendant architect, despite having previously established as a  preliminary issue that the architect, who provided free services to friends, owed a duty of care in tort when carrying out those services. Among other things, the claimants had alleged that the defendant had been negligent and in breach of duty in respect of inspection services carried out, and it is this part of the claim which we focus on in this blog post.

With reference to McGlinn v Waltham Contractors Limited  [2007] EWHC 149 (TCC), the court referred to a common failing in claims against architects, which is to

“assume any claim for bad workmanship against the Contractor must automatically be reflected in a claim against the Defendant on the basis that if there is a defect, then the Defendant has been negligent for not identifying it and having it remedied.”

The key point here being that, in circumstances where the underlying workmanship is defective, it is not automatically the architect’s fault for failure to spot the defect. A claim against an architect in this respect must be far more nuanced and detailed to stand a chance of succeeding. In particular, the claimant must identify what, specifically, should have been identified by the architect, and when.

Following on from this, the court rehearsed some well-established legal principles relating to an architect’s obligation to inspect which are worth reiterating, including that:

  1. the frequency and duration of inspections should be tailored to the nature of the works on site
  2. if an element of the works is particularly important, the architect may instruct the contractor to ensure it is not covered up during its inspection, although this is a situation that is “unlikely to arise in most cases”
  3. a reasonable inspection of the works does not require the architect to examine every matter in detail, and
  4. the fact that work is covered up during inspections will not automatically amount to a defence to failure to inspect allegations. In these circumstances, matters such as the importance of the work and the architect’s reasonable understanding of what works are being carried out on site are to be taken into account.

The outcome makes it clear that courts will not automatically find breach in circumstances where workmanship errors were not identified by an inspecting architect - claimants have to give detailed evidence as to what specifically should have been inspected and when.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Filed Under: Construction

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