Searches must be reasonable, but there is no need to keep looking on the off-chance of finding something nasty
Carrying out research into a site or project often involves extensive reviews of archives and publicly available documents. But how far do you have to search before you can safely say you have looked extensively enough for possible risks surrounding a site?
Sir Robert McAlpine recently received an answer to this question from the Court of Appeal. It stemmed from a project it is developing in Newcastle upon Tyne. The site had been subject to numerous redevelopments, some in the 1970s, which had involved significant excavation. However, when the firm came to sink a large number of concrete piles in the site, it was unaware of a private sewer 3m below ground level, which had not shown up on any of the usual plans or searches.
When the concrete being poured for the piles came close to this unknown sewer, it leaked into it and ended up flowing into, and then blocking, Northumbrian Water’s public sewer in the adjoining road.
After the event, while looking for an entirely different sewer plan, one of McAlpines’ employees found a 1908 plan showing the private sewer, in the archives of the Newcastle Discovery Museum.
Northumbrian Water brought a claim against McAlpine's for the cost of removing the obstructing concrete from its public sewer in the road. Northumbrian Water claimed that McAlpines had been negligent in not looking further for the plan in the museum.
When concrete came close to this unknown sewer, it leaked into and blocked a public sewer
The Court of Appeal, however, was clear that the original judge had been right to dismiss the claim of negligence against McAlpine's. Because the site had been extensively redeveloped in the 1970s, it was highly unlikely that any earlier drains would have survived, and McAlpine's had carried out all the usual investigations and searches as to what sewers might be under the site – including a sewer search with Northumbrian Water which showed no sign of the private sewer. The 1908 plan was discovered only after a search of the museum archives lasting several hours by one of McAlpines’ employees, who was in fact searching for plans relating to another issue on an entirely unconnected sewer.
The Court of Appeal said it would not be reasonable to expect a contractor to search for several hours in museum archives to see if by chance there might be a sewer not shown on all the other searches, and which had been built more than 100 years earlier.
The escaping concrete was also found by the Court of Appeal not to be a ‘nuisance’, which it may have been if the development of the site was somehow an unreasonable use of the land, bearing in mind that city redevelopments of this nature are entirely usual. The fact that it was not expected that the private sewer existed, and therefore might result in concrete flowing into the public sewer, meant that it was not unreasonable to carry out works using concrete piles of this sort.
Architects may therefore wish to bear this case in mind if needing to investigate a particular site or location, to gain some reassurance as to just how extensive searches of the site need to be. Searching for hours through archives, on the off chance of finding something significant, is not necessary to avoid facing a claim for negligence.
Alistair McGrigor is partner at Nabarro
Equivalent rights of defence
One of the key protections which architects should seek in any collateral warranty which they may enter into is an ‘equivalent rights of defence’ clause. As the name suggests, these enable the architect (when facing a claim brought under a collateral warranty) to rely on the same defences to liability in the warranty that exist in its appointment with its client. This is important because, if you have carefully negotiated, say, a cap on liability in your appointment document, the clause will automatically impose that same cap on your liability under the warranty.
Likewise, if you have a clause limiting your liability for 12 years from the date of practical completion in your appointment, but no such clause in your warranty, the equivalent rights of defence clause will impose the same protection for a claim under the warranty. This could be important where a warranty is signed many years after practical completion, and avoids a new 12 year period starting to run from the date the warranty is signed.
Frequently, such clauses also carve out the defences of counter-claim or set-off. This is because, if a client wrongfully does not pay an architect its fees, but goes on to claim losses from that architect, the architect can counterclaim for the unpaid fees. However, should a beneficiary of a warranty on that same project bring a claim against the architect, it would be considered inappropriate to allow the architect to set-off unpaid fees, as the beneficiary will have no control over whether the client has paid those fees.