Guide to Using the RIBA Professional Services Contracts 2018 - Other - Page 35
34 z
Guide to RIBA Professional Services Contracts 2018
unsigned documents incorporating the adjudication clause. The court found that
the contract terms were never agreed, there was no adjudication provision, and the
adjudication was therefore invalid, i.e. the Client was not bound to pay the disputed
invoices.
Munkenbeck and Marshall v Michael Harold2 The Architect had referred to the RIBA
Form of Appointment SFA/99 (2000 edition), but did not give a copy to the Client.
After a dispute about fees and a counter-claim was resolved out of court in the
Architect’s favour, the Architect sought to recover costs and interest associated with
preparing the claim for the unpaid fees. The judge decided that the relevant clauses
in SFA/99 were unfair because they had not been drawn to the attention of the
consumer client.
In a number of similar cases3 before the courts, contractors sought to enforce an
adjudicator’s award which the defendant consumer client refused to pay on the
grounds that the building contract terms had not been individually negotiated. The
courts’ reasons for finding for the various contractors included:
• the Client had competent and objective advice from their professional adviser
• the JCT Building Contract had been imposed by the Consumer, through their
surveyor
• the Client had agreed all of the terms of the Contract by signing it, including the
adjudication rules.
On this basis the Architect/Consultant should equally be aware of the need to agree
the details of the Building Contract as well as the terms of appointment.
The Principal Designer role when working for a domestic client project under
the CDM Regulations 2015
On most domestic projects, the Principal Designer is appointed in the same way as
non-domestic projects. However, Regulation 7.2 states that If a domestic client fails
to make the appointments required by regulation 5 (appointing a Principal Designer
in writing), the designer in control of the pre-construction phase of the project is the
Principal Designer. This means that on domestic projects the lead designer, likely
to be the Architect/Consultant, will automatically become the Principal Designer if
the client does not make an appointment in writing, and is therefore liable for the
Principal Designer duties.
On most domestic projects, the Principal Designer role will, in all but the most
complex situations, not be a great deal more difficult to undertake than the role
architects perform in the course of their work undertaking designer’s duties but will
require additional time and resource. As taking on the Principal Designer’s duties is
essential for almost every domestic project, the RIBA recommends that its members
discuss with domestic clients the Principal Designer duties as a mandatory part of
the service at the same time as agreeing the scope of architectural services and
include the additional fee for the Principal Designer role within the fee for the overall
appointment. The RIBA Domestic PSC includes the Principal Designer role duties as
services at the end of the Schedules of Services section.
Design and Build
Where the contract starts on a traditional basis and it is subsequently decided that
the project will change to a Design and Build contract whereby the services of the
Architect/Consultant are transferred to a Contractor, the Architect/Consultant should
ensure that the terms of the initial appointment are assigned to the new contract with
the Contractor – see Assignment.
[2] Munkenbeck and Marshall v Michael Harold [2005] EWHC 356 (TCC).
[3] Westminster Building Company v Andrew Beckingham; Bryan and Langley Limited v Boston; and
Cartwright v Fay.
34
