Law in Practice-The RIBA Legal Handbook (2018)

John Wevill Law in Practice 3rd Edition Law in Practice 3rd Edition John Wevill Intensely practical and clearly written, Law in Practice is the de nitive jargon-free, professional guide to the law relating to construction projects. Addressing all the fundamental issues of contemporary English construction law, it allows architects to make sound judgements, avoid disputes, and run projects on a safer basis. This 3rd Edition is now fully up-to-date with all recent changes including CDM 2015, BIM, and the new RIBA Building Contracts and RIBA Professional Services Contracts. The 3rd Edition of John Wevills Law in Practice remains true to its title and continues to provide a clear and intelligible exposition of the law governing architects professional activities in a practical setting. From the opening chapter on duty of care, to the analysis of professional indemnity policy, this handbook deals with the major issues that architects encounter. John tackles perennially awkward issues such as duty of care and limitation, whilst the worked examples of Pay Less Notices under the Construction Act are most welcome. The latest edition also contains a useful guide through some of the new contract standards, such as the RIBA Professional Services Contract 2018, the NEC4 Contract and the FIDIC 2017 Contract. The reader is certain to leave with greater con dence and understanding of the law as it relates to construction projects. Mark Klimt, DWF, Partner and head of Non-Contentious Contract Advisory Service Law in Practice 3e-AW-A4.indd All Pages 25/10/2018 1334Law in Practice 3rd Edition John Wevill John Wevill, 2018 3rd Edition Published by RIBA Publishing, 66 Portland Place, London, W1B 1NT ISBN 978-1-85946-672-8 The right of John Wevill to be identified as the Author of this Work has been asserted in accordance with the Copyright, Designs and Patents Act 1988 sections 77 and 78. All rights reserved. No part of this publication may be reproduced, stored in a retri system, or transmitted, in any or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior permission of the copyright owner. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. Commissioning Editor Alexander White Project Editor Daniel Culver Production Phil Handley Typeset by Academic Technical, Bristol, UK Printed and bound by Page Bros, Norwich, UK Cover design Kneath Associates Cover image Elenamiv / S While every effort has been made to check the accuracy and quality of the ination given in this publication, neither the Author nor the Publisher accept any responsibility for the subsequent use of this ination, for any errors or omissions that it may contain, or for any misunderstandings arising from it. dhe Cosima, yth eson ni polsyow dhe-vesiv Preface Weve been here before does the world really need another law textbook, specifically another edition of this one I have a particular interest in providing construction law advice to architects; it is the core of my professional practice. In late 2009 I had begun drafting a series of articles covering the basic principles of English construction law. I hoped to explain the fundamental issues as simply as possible, and then go into more detail and expand the articles to cover interesting current developments flowing from the basics. In this way I wanted to make the articles useful for students of architecture and those just starting off in practice, but also to make the pieces relevant and interesting to more experienced practitioners. The articles were going to deal with the various topics from a practical perspective. I wanted to give architects arguments they could use in contract negotiations, and a way to find answers to the legal questions an architect is likely to encounter during the course of a project. To make sure my work was along the right lines, but not directly covered by material already published, I checked the available texts who else was talking, and what were they talking about There were many interesting one-off articles, but there did not seem to be an up-to-date, comprehensive guide that sought to provide practical advice to architects. There were perhaps two or three good textbooks providing a comprehensive technical summary of the relevant law, but nothing like the work I wanted to produce. The only sensible way to cover the range of topics I wanted to address seemed to be with a new textbook, so I started writing. But the law is constantly changing, adapting subtly to meet our changing needs, and so 10 years on I remain writing in order to keep this book as relevant and helpful as it can be. My focus is on the law of England and Wales, and this book deals with construction law. There are many excellent books covering related areas planning law, for example, and practice management in much greater detail than I could in these pages. I have listed a number of very useful titles and other resources in the further reading section at the end of this book. The aim of this book is to describe, as simply as possible, the law an architect needs to know to get through a project successfully but then v Preface to go one step further and discuss the practical effects of the relevant law. In short, to give architects the tools that will enable them to work through queries related to construction law for themselves. As a by-product, I hope I can pass on in some way my enthusiasm for an extremely important, engaging and dynamic area of law. The law is as stated at 20 October 2018. It takes a lot of goodwill and generous assistance to enable someone to write a book. This new edition would not have been possible without Elizabeth Webster; Alex White; Steven Cross; Satwinder Samra; Stephen Brookhouse; Philippa Varcoe; Suzi McCrea; Joe, Ollie, Adam, Chloe, Emily and all at Boodle Hatfield LLP; and Ben and Dodo Wevill. John Wevill October 2018vi About the author John Wevill is one of the leading construction lawyers in the country. He has over 20 years experience advising consultants, developers, funders, insurers, contractors and subcontractors in relation to all major standard appointments, contracts and subcontracts, and a vast array of bespoke s; development, joint venture and framework agreements; collateral warranties, schedules of third party rights and other security documents. John also has extensive experience of construction dispute resolution, including litigation, mediation, arbitration and adjudication, as well as Architects Registration Board ARB and RIBA disciplinary proceedings. John is a visiting lecturer at Oxford Brookes University and the University of Westminster and is a Partner and Head of Construction law at Boodle Hatfield LLP .vii Contents Preface iv About the author vi 01 General principles of English construction law 1 1. 1 What do we mean by law 2 1.2 Why legal knowledge is valuable to architects 3 1.3 Where does law come from 4 1.4 Law is not static it evolves 12 1.5 Language and law 15 Chapter summary 18 02 The laws of contract and tort 19 2. 1 The civil legal obligations of an architect 20 2.2 The law of contract 21 2.3 The law of tort 32 2.4 Limitation periods 44 2.5 Working overseas 48 Chapter summary 51 03 Professional appointments generally 53 3. 1 The need for a written appointment 54 3.2 cution of documents 57 3.3 Who writes the written appointment 65 Chapter summary 67 04 Standard s of professional appointment 69 4. 1 RIBA Standard Professional Services Contract 2018 70 4.2 NEC4 Professional Services Contract 88viii 4.3 FIDIC Client/Consultant Model Services Agreement, FifthEdition2017 89 Chapter summary 90 05 Bespoke professional appointment wording 91 5. 1 Overview of bespoke s 92 5.2 Discussion of particular s of words used in bespoke appointments 94 Chapter summary 14 9 06 Collateral warranties, third party rights and novation 15 1 6. 1 Overview of collateral warranties 15 2 6.2 Overview of third party rights 16 1 6.3 Novation 16 4 Chapter summary 17 0 07 The architects role within a construction project 17 1 7. 1 The relationship between the architect and the client 17 2 7.2 The architects services 17 5 7.3 Strategic Definition, Preparation and Brief RIBA Stages 0and 1 17 9 7.4 Concept Design and Developed Design RIBA Stages 2 and 3 18 1 7.5 Technical Design RIBA Stage4 18 9 7.6 Construction and the architects duty to inspect RIBAStage5 19 7 7.7 Handover and Close Out, and In Use RIBA Stages 6 and 7 19 9 Chapter summary 20 0 08 The role of the architect in relation to the building contract 20 1 8. 1 Managing relationships with the client and the contractor 20 2 8.2 The architect as contract administrator CA 20 3 8.3 Specific powers and duties of a CA 20 7 Chapter summary 22 0ix 09 Professional indemnity insurance PII 22 1 9. 1 The need for PII 22 2 9.2 Specific provisions of a typical PII policy 22 8 9.3 Risk management 23 8 Chapter summary 24 6 10 Disciplinary proceedings and dispute resolution 24 7 10.1 Disciplinary proceedings 24 8 10.2 Dispute resolution an overview 25 2 10.3 Adjudication 25 5 10.4 Arbitration 26 9 10.5 Litigation 27 2 10.6 Mediation 27 5 Chapter summary 27 8 Table of cases 27 9 Table of legislation 28 3 Glossary 285 Further reading and resources 28 9 Index 295Chapter 1 General principles of English construction law This chapter examines what law is and where it is found considers why it is important for an architect to know the law describes how law develops and why explores why the language we use is so important.2 Law in Practice 1.1 What do we mean by law Why do we have laws at all It seems like this should be a simple question, but finding the answer is a vital stepping stone on the way to understanding why it is important for a professional, such as an architect, to know the law. Laws are sets of rules intended to regulate human behaviour. A degree of order is a necessity in any society, if that society is to be able to sustain itself over a period of time. A society, an abstract concept, has no separate will or desire to sustain itself. A society is no more than the individual people that make up that society. The imposition of law is one way of creating order and rting social control. If the majority of the people that have the power in a society to impose and enforce laws recognise a benefit in the continued existence of the society, then laws will be created with the aim of sustaining it. If the remainder of the society similarly recognises a benefit in the imposition of those laws, or has no power to object, they will acquiesce in the imposition of those laws. In a sophisticated, developed society, laws will develop or be created to govern all aspects of human behaviour and interaction, ranging from basic norms of personal behaviour to the rules which govern complex commercial transactions. The law of England and Wales, with which this book is concerned, is a highly developed, multifaceted system. Construction law is one aspect of this larger system. The idea of construction law as a distinct topic, worthy of study in its own right, is a relatively recent one. The Building Law Reports, widely recognised as the leading authoritative law reports for construction-related disputes, first appeared in 1976 the word Building on the reports title page was originally represented in a variation of the Moore Computer font, clearly marking them as a product of the late 1970s. The Society of Construction Law was founded in the UK in 1983. The Construction Law Journal was first published in 1990. The Technology and Construction Court acquired its current name on 9 October 1998, as a rebranding of the Official Referees Court. The term construction law is most helpfully understood as referring not to a separate entity, but rather to a broad range of general legal topics such as contract law, tort and the supply of goods and services specifically applied to the vast range of activities undertaken by the construction industry.3 Chapter 1 General principles of English construction law 1 The place of construction law in the construction industry is emphasised by the way in which the development, and promotion of the understanding of, construction law has been a collaborative process, involving the interaction of construction professionals as well as lawyers. This continued interaction is vital; without the of construction professionals through bodies such as the Society of Construction Law, construction law would be less responsive, less relevant. Construction law both governs and serves the industry. 1.2 Why legal knowledge is valuable to architects For the architect, construction law sets the framework within which the practice of their core skills is to be carried out. Whether developing the design, securing consents and approvals, or managing the construction phase, all aspects of the architects work require a degree of knowledge of the legal context, beginning with the decision about whether or not to tender for a project, all the way through to RIBA Stage7, post-practical completion, and managing the risk of ongoing liability in the years after the project has finished. European procurement law even in a post-Brexit landscape may be relevant when considering what rules must be complied with when tendering for the job. The architect will require knowledge of planning law, the law relating to party walls and the Building Regulations when applying for the relevant permissions and approvals. Knowledge of health and safety legislation will be vital for an architect in preparing their designs and administering the building contract. In their contract administration role, the architect will also need a general knowledge of the law relating to the main provisions of the major standard construction contracts. Knowledge of the law relating to intellectual property will allow the architect to better protect their rights under any appointment with their client. What insurance is the architect obliged by law to carry What, in law, does the wording of an insurance policy mean for the architect in practice Will the architect be required to enter into collateral warranties with third parties or grant third party rights Might there also potentially be liabilities in negligence to third parties 1.2.1 What standard of legal knowledge is required of the architect Underlying all of this is the architects relationship with their client. It is important for the architect to know about their own potential rights and obligations in contract law and the law of tort. What do the words in the architects professional appointment require them to do What professional standard must be achieved If there is a dispute, what are the rules for resolving it4 Law in Practice An architect is not expected to be a lawyer. However, according to the 1978 case of BL HoldingsvWood at page 70 o