Fears that the RIBA Plan of Work 2013 raises obligations are misplaced, says Stacy Sinclair
The RIBA Plan of Work 2013 launched on 21 May. Some critics fear that it creates extra onerous duties and obligations for architects, but there is nothing new from a legal point of view.
The Plan is merely guidance – as it always has been. It is not mandatory but simply sets out best practice in terms of briefing, design, construction, maintenance and operation. Indeed it states: ‘The RIBA Plan of Work 2013 should be used solely as guidance for the preparation of detailed professional services contracts and building contracts.’ Furthermore, as the Guide to Using the RIBA Plan of Work 2013 states, the new Plan is a definitive model for building design and construction in the UK, just as it has been since its conception in 1963.
An architect’s legal obligations are those that you sign up to in your appointment, those implied by law, duties which you owe to third parties, legislation requirements and of course your professional code of conduct.
The new Plan encourages the use of legally binding documents, though obligations would arise only if they were expressly incorporated in your appointment. For example, it recommends such tools as the Strategic Brief, Initial Project Brief, Information Exchanges, Project Programme, Project Budget, Technology Strategy and Schedule of Service. Clearly if you agree to provide services as set out in these documents, they become legal obligations.
Documents introduced by the new Plan should not be seen as onerous but as tools to assist in complying with your legal obligations and minimising disputes which arise as a result of ambiguous contracts. As such, it seeks to bring clarity to appointment documents by ensuring that design responsibility has been allocated (Design Responsibility Matrix), that the right information is issued at the right time (Information Exchanges) and that the brief is clearly established at the outset of the project (Strategic Brief and Initial Project Brief).
Case law has shown how ambiguous contract documents or a failure to reasonably perform professional services may lead to court.
In the case of Plymouth & South West Co-operative Society Ltd v Architecture, Structure & Management Ltd (2006) the architect was found to be negligent in proceeding with its original recommendation for the construction works when it should have realised this would make costs overrun. With the new Plan, tools such as the Project Programme, Cost Information and Construction Strategy, all of which are recommended to be reviewed and updated at various stages during the project, may help to avoid such situations.
In the recent case of Elvanite Full Circle Ltd v Amec Earth & Environmental (UK) Ltd (2013), the judge held that Amec was liable for breaching a term of its contract that it would complete and submit the planning application for a waste recycling centre by November 2007. However, Amec successfully argued that due to Elvanite’s delay in providing information in respect of the site use/layout, responsibility for submission of the planning application was beyond its control. Here, it appears that the brief for the proposed works was ambiguous and constantly changing. The judge referred to Merton LBC v Stanley Hugh Leach Ltd (1985) as an example that when one contracting party must complete a task by a certain date, the other has a duty to take reasonable steps to ensure such dates can be met. Again, tools in the new Plan, such as the Strategic, Initial Project and Final Project Briefs help avoid such disputes.
The RIBA Plan of Work 2013 is a non-contractual document which aims to influence contract documents and construction processes in terms of best practice – thereby minimising ambiguities at the outset which may ultimately lead to costly disputes.
Stacy Sinclair is with Fenwick Elliot LLP
Threats posed by ‘no win, no fee’ litigation have been reduced by new legislation
JACKSON COST REFORMS
Significant changes to civil procedure came into force on 1 April 2013. They follow Lord Justice Jackson’s Review of Civil Litigation Costs in 2010, the biggest review of civil procedure in England and Wales since Lord Woolf’s Access to Justice in 1996.
Lord Jackson made important recommendations. Intended ‘to promote access to justice as a whole by making costs of litigation more proportionate’, it is hoped the changes will speed and ease dispute resolution, and will discourage unnecessary or unmeritorious claims. For example, those using ‘no win, no fee’ agreements will now have an interest in controlling the costs incurred on their behalf. Previously, claims could be pursued with no real financial risk to the claimants and the threat of excessive costs to the defendant. The government believes ‘access to justice’ depends on costs being proportionate and unnecessary cases being deterred.
Other changes include new rules on disclosure (the process by which parties make relevant documents available to other parties in the dispute) and cost management (detailed cost budgets must be filed and exchanged before the first case management conference).