Guide to appointing

an Architect

Innovation Best Practice Productivity

 Contents

1 Introduction – Guide to appointing an Architect

Stephen Homer – Ashfords LLP

2 1 The RIBA Work Stages and what the architect is being appointed to do
Stephen Homer, Lianne Edwards – Ashfords LLP
8 2 Form of Appointment
RIBA standard form or bespoke – a brief comparison
Anna Wood – BPE Solicitors LLP

12 3 ‘Designer’, ‘lead designer’ and ‘lead consultant’

What’s the difference?
John Rich – SRA Architects

14 4 Architects and the CDM Regulations

Lydia Stuart-Banks – Trowers & Hamlins LLP

6 5 Copyright
1
The client’s rights including copyright in the BIM model
Alan Tate, Jo Morris – Michelmores LLP

8 6 Agreeing the fee and paying your architect

1
Oliver Williams – Trowers & Hamlins LLP

0 7 Professional Indemnity Insurance and Contractual Limitation of Liability

2
Marcus Saunders – Stackhouse Poland

2 8 Collateral Warranties and Novations

2
Anna Wood – BPE Solicitors LLP

4 9 Dispute resolution
2
Mediation and ADR
Christopher Reeves – Mediation for Construction

8 10 Dispute resolution
2
Adjudication, arbitration or litigation – understanding the differences
Stephen Homer, Lianne Edwards – Ashfords LLP

Cover image: SRA Architects

Guide to appointing an Architect

Introduction – Stephen Homer
Ashfords LLP

Guide to
appointing
an Architect

Constructing Excellence South West This Guide covers subjects such as:

has identified that construction • an explanation of the different stages of a construction
project and the input to be expected from the architect at
clients often seek the assistance each stage;
of an architect prior to that of any • a comparison between RIBA forms of architect appointment
other construction professional and bespoke forms of architect appointment not published
by the RIBA;
and yet, particularly (but not
• an explanation of what you might expect if you appoint
exclusively) those carrying out their
your architect as lead consultant on the one hand and lead
first construction project, may not designer on the other;
fully understand the process and • a commentary on the architect’s role in relation to the CDM
implications of appointing a firm Regulations relating to health and safety;

of architects in relation to their • a summary of the client’s rights in relation to copyright in

designs and the building information model;
construction project. The purpose
of this Guide is to assist construction • a consideration of the different ways in which architects
charge for their services;
clients and to familiarise them
• a brief explanation about professional indemnity insurance
with the issues surrounding the and limits on liability which an architect might look for;
appointment of an architect in order
• an explanation of collateral warranties and novations; and
that they can do so from a position
• a summary of different methods of dispute resolution
of knowledge and so as to promote whether by mediation, adjudication, arbitration or litigation.
best practice.
It is hoped that any construction client who reads this Guide
will have a much greater understanding of such issues and
will be able to make informed choices when appointing
their architect which should lead to best practice and
increase the prospects of a successful construction project
finishing on budget and on time.

Of course, if there are any specific points you would like to
discuss then please contact Constructing Excellence South
West or any of the authors.
Constructing Excellence South West would like to thank
everyone who has made this Guide possible.

Constructing Excellence South West 1

 1
The RIBA Work Stages
and what the architect
is being appointed to do

The RIBA Plan of Work 2013 sets out and describes the Use of the Plan of Work is not obligatory but it is widely
various stages of a construction project. Whilst the Plan adopted. It can be used across all sectors and a range of
of Work is a holistic framework (encompassing the entire project sizes. Aligned to each stage are task bars, outlining
project lifecycle, and wider than the architect’s role alone), the typical tasks you might expect to be carried out in the
it is often used as the basis for structuring an architect’s various stages. Whilst the RIBA Plan of Work itself is not a
services and fees. An architect can be appointed to contract document, it is often the case that the architect’s
provide a full service across all or most of the stages, specific services (commonly set out in a schedule of
or a more tailored service for a lower fee, usually where services forming part of the architect’s appointment)
the client is more experienced and does not need are based on, and refer back to, the RIBA stages.
a full service.
RIBA also publishes the RIBA Job Book (the latest being
The earlier (2007) version of the Plan of Work was the 2013 edition) which acts as a standard reference for
overhauled in 2013, and an overview document running projects, providing an operational framework and
was published giving guidance on each stage. examining the step by step obligations of an architect in
The documents, and useful toolkits, are readily line with each of the RIBA work stages. It is accompanied
accessible from the RIBA website. by checklists and templates many of which can be freely
downloaded from the RIBA Bookshop website.
RIBA has since published the RIBA Small Project Plan
of Work in 2016 to cover small projects for new clients. So, what are the stages?
The 2016 Small Project Plan of Work adopts the same
stages as the 2013 Plan for larger projects, but as one
might expect the tasks aligned to those stages in the
Small Project Plan are tailored to suit a smaller scale project.

Clarity of the scope of a professional’s services is essential.

The role of an architect often goes far beyond designing the
building. It is crucial for the smooth running of any construction
project, that everyone is clear on who is responsible for what.

2 Guide to appointing an Architect

 Stephen Homer, Lianne Edwards
Ashfords LLP

RIBA Plan of Work © Royal Institute of British Architects

Constructing Excellence South West 3

The RIBA Work Stages and what the architect is being appointed to do
(continued)

RIBA Stages

Stage 0 Stage 1 Stage 2 Stage 3

Strategic Definition Preparation and Brief Concept Design Developed Design
This stage involves defining The initial project brief is This is when the design This is the detailed design
the project, before the initial prepared using the information team prepares its response stage, during which
project brief is prepared. gathered at stage 0. This sets to the initial project brief and proposals for structural
This is the stage at which the out the project objectives when the client will probably design, building services
client’s priorities and design (the client’s key objectives in receive the first drawings systems and so on should
ambition are communicated carrying out the project) and and design ideas. Meetings be prepared, collated and
to and considered by the the client’s business case (the and workshops are likely co-ordinated. A developed
architect. It may involve a client’s rationale behind the to take place to discuss the design and updated cost
consideration of the site project, possibly including design. The project brief information are produced
(and/or whether another site financial appraisals and other will continue to develop at the end of stage 3 and
might be preferable) and background information). during this stage, with a the RIBA Plan of Work 2013
take a high level view of the Feasibility studies may well be view to the final project brief Overview recommends
approach to the project (for carried out at this stage to test being issued by the end of that planning applications
example, is a refurbishment, the feasibility of the project this stage. A sustainability are normally submitted at
extension or new build the being carried out on a specific strategy may be prepared the end of this stage.
most appropriate solution?). site or in specific context. and the construction strategy
A client will need to consider and programme will be
During this stage, the project
its funding options and the considered. Preliminary cost
team is assembled and roles
client’s project outcomes information should also be
and responsibilities allocated.
(what is it that the client is prepared.
Pre-application discussions
seeking to achieve?) will be
with the planning authority
discussed at this stage.
might take place.
This stage is a fundamental
This stage requires an
stage to project development.
architect to review the client’s
It is at this stage that the key
requirements, budget and
requirements and constraints
timetable. In particular,
are identified. As considered
the architect must “Check
in the case of Riva Properties
these carefully, question
et al v Foster and Partners
incompatibilities and agree
[2017] EWHC 2574 (TCC)
priorities”.1
this includes not only physical
constraints but also financial
constraints such as budget.
Stage 0 requires an architect
to obtain from the client the
project requirements, budget
and desired timetable.
1
RIBA Job Book 9th edition (2013)

4 Guide to appointing an Architect

Stage 4 Stage 5 Stage 6 Stage 7
Technical Design Construction Handover and Close Out In Use
This stage is when the As the name suggests, This stage includes the This stage, which may not
architectural, building this stage comprises all conclusion of the construction always involve the architect,
services and structural construction works including works and handover of the focusses on using the
engineering designs are mobilisation through to building. The stage will include project design information
further developed and refined practical completion. The the final inspections post to assist with the ‘successful
to provide detailed technical principal output for this stage, practical completion of the operation and use of the
information for the project in terms of design work, is the works and, subject to the building’. This is effectively
to take the design to the ‘as-constructed’ information. schedule of services, may a review stage and looks
point of construction issue During this stage the architect also require the architect and to evaluate the design in
drawings. Some drawings may also undertake a contract other consultants to attend a practice. For some repeat
may be further refined during administration role which feedback session and input clients, this stage may be
the latter part of this phase usually includes regular site into a review of the project as part of stage 0 for the next
and into stage 5 by specialist inspections and reviewing a whole. development.
subcontractors but by and progress of the construction
large, by the end of this stage works.
the designs should be fully
developed save for queries
that might arise on site during
construction.
By the end of stage 4 any
negotiation or tendering
process with contractors is
also complete. Throughout
stages 2 – 4, depending on
the procurement route, a
negotiation or tender process
will have taken place such
that by the end of stage 4,
in a traditional procurement
scenario, the building contract
is ready to be executed.

Constructing Excellence South West 5

The RIBA Work Stages and what the architect is being appointed to do
(continued)

Where does Offsite manufacturing fit into this?

In 2016, RIBA published the Design for Manufacture and Assembly
(DfMA) overlay to the RIBA Plan of Work. This was sponsored by leading
contractors and clients through the Offsite Management School which
was created to help projects make better use of offsite manufacturing.
This overlay sets out key considerations at each of the RIBA stages:

6 Guide to appointing an Architect

Stage 0 and 1 – this might include additional What might you expect to see in the architect’s
considerations of modular construction and further Schedule of Services?
appraisals of the site to consider the suitability of modular As explained above, the schedule of services in the
construction. This will be incorporated as part of the architect’s appointment will often be set out by reference
feasibility study. The design team appointed at stage 1 to the RIBA work stages. The schedule will set out in
should then be mandated to consider all options to utilise more detail the tasks which the architect is expected to
off-site manufacturing if this is required by the client. undertake during each of the stages and the schedule
is key in establishing the architect’s obligations. Careful
Stage 2 and 3 – given the design development at stage
consideration should be given to its content. The types
2, this is where DfMA really comes through as the design
of tasks you might expect to see listed are things such
will either follow the path of modular components or turn
as ‘provide detailed design drawings’, ‘consult statutory
to a traditional build. If DfMA is adopted, the design team
authorities’, ‘provide production information’, ‘attend
will need to focus on coordinating the different elements
site meetings’ and so on. It is important that the client
of design with pre-fabrication in mind. There may also be
is satisfied that the scope of the architect’s services is
early procurement of prototypes to assist the design team
sufficient and appropriate for its particular project.
in developing the design.
Stage 4 – the design for DfMA sets out the design-intent
information with follow on development of fabrication
information to allow pre-fabrication to commence in line
with the construction phase.
Stage 5 – this includes the installation of pre-fabricated
components with delivery of pre-packed ‘fit-out kits’
including mechanical and electrical works and services.
Stage 6 and 7 – the ‘as-constructed’ information may
also include details as to how the building might be
disassembled at a later date.

Constructing Excellence South West 7

 2
Form of Appointment –
RIBA standard form or bespoke
– a brief comparison

8 Guide to appointing an Architect

 Anna Wood
BPE Solicitors LLP

Why does the form of Upon closer inspection of each tender, you may notice
that the architect expects the form of appointment to be
appointment matter? either the RIBA Standard Form of Agreement 99 (‘SFA 99’)
Having considered the extent of the or the more recent RIBA Professional Services Contract
2018 (‘PSC 2018’). Before agreeing to this contract, you
architectural services you require should consider:
(see Chapter 1) and invited a number
1) What is my procurement structure?
of practices to submit fee proposals, 2) Who is funding my project?
you will move to formally appoint 3) What is my ‘exit plan’?
your architect. Your source of funding and intentions for disposal are
also highly relevant to the drafting of your architect
appointment: high street and other institutional lenders
will expect to see certain terms in the contract that
will make the project bankable, either for you or your
prospective purchaser.
RIBA vs bespoke
Broadly speaking, for self-funded projects procured via a
traditional route, a RIBA standard form may suit the parties
adequately. However, funders generally perceive the RIBA
standard forms to be too ‘pro-architect’. Further, the SFA
99 was not drafted to novate comfortably to a design and
build contract such as the JCT Design and Build 2016 and
although some tweaks have been made, the PSC 2018
does not align perfectly with the standard form and by
its very nature cannot align perfectly with any bespoke
amendments to a standard building contract that you may
be using for your project.
The remainder of this chapter considers some of the key
issues covered by an architect appointment and compares
and contrasts the wording of the RIBA standard forms
with a ‘typical’ bespoke architect appointment document.
Unless specified, the observations relate to both the
SFA99 and the PSC 2018.

Constructing Excellence South West 9

Form of Appointment
RIBA standard form or bespoke – a brief comparison (continued)

Duty of care
Contractual obligations can be ‘absolute’ (e.g., must be done) or subject to a duty of care (e.g., must use reasonable skill and
care to do something). The terms of the appointment can make specific points regarding what that duty of care relates to.

RIBA Typical Bespoke

SFA99 – “exercise reasonable skill and care in conformity More prescriptive and links the duty to the specifics of
with the normal standards of the Architect’s profession” the project
PSC 2018 – more prescriptive and links to the specifics
of the project
SFA99 – Expressly excludes any commitment to see that Whilst the architect is not liable for delay or cost
the works are completed on time or on budget overrun, they are required to be mindful of the client’s
programme and budget and work within it and alert the
PSC 2018 does the same but does require the architect to
client when issues arise
inform the client of issues which may materially affect the
‘Construction Cost’
Absolute obligation to comply with health and safety Absolute obligation to comply with health and safety
obligations set down in the CDM Regulations obligations set down in the CDM Regulations
No express mention of deleterious materials Express obligation to use the duty of care to see that no
deleterious materials are specified or approved for the
works

Copyright
How the client is legally entitled to use the design produced by the architect under the appointment is critical: this is, after
all, what the client is paying for. For more information on copyright, see Chapter 5.
RIBA Typical Bespoke
Architect owns the copyright and grants a licence to client Architect owns the copyright and grants a licence to client
Licence excludes the reproduction of the designs for Allows use but not reproduction for extension of the
extension of the project unless a licence fee is paid property
Architect asserts his moral rights Usually moral rights are waived
Architect not liable for use other than intended use Architect not liable for use other than intended use
SFA 99 – A licence fee may be payable for continued use Licence is always ‘royalty free’
(including prior to practical completion)
SFA 99 – If the client is late paying an instalment of the fee, Licence is always ‘irrevocable’ (the architect has other
the Architect can suspend the licence rights in respect of late payment)
PSC 2018 – The copyright licence referred to above is
subject to fees having been paid
(i.e., subtle difference in wording between the two)

10 Guide to appointing an Architect

Limitation of liability and net contribution
Liability can be limited by scope, time and value.
RIBA Typical Bespoke
Option for 6 or 12 years from completion of the services Usually 12 years from the later of completion of the
or, if earlier, the date of practical completion of the works services or practical completion. Remember that
the architect’s services may continue past practical
completion.
Financial liability is limited to a cap or the ‘net contribution’ May allow a cap on liability linked to professional
(for more on net contribution see Chapter 7) indemnity insurance. Usually no net contribution clause.
Specific limitations relating to programme, budget, Confirms that the architect remains responsible for
solvency of others, performance of others sub-contracted services

Collateral Warranties
For more information on collateral warranties please see Chapter 8.
RIBA Typical Bespoke
SFA 99 – No express obligation to procure collateral Express obligation to procure collateral warranties from
warranties from sub-consultants sub-consultants
PSC 2018 – Allows parties to specify requirements
Only to be provided within a reasonable period once fees Gives time limit for returning warranties (usually 14
have been paid days) and can make this a condition precedent to
further payment

Dispute resolution
For more information on dispute resolution please see Chapters 9 and 10.
RIBA Typical Bespoke
Parties may use RIBA mediation service May include a tiered dispute resolution clause requiring
the parties to go through certain steps before instigating
formal proceedings
Sets out rules for adjudication Sets out rules of adjudication
The SFA 99 sets out rules for arbitration Parties can choose whether the appointment will use
litigation OR arbitration for dispute resolution
The PSA 2018 allows the parties to select litigation or
arbitration

Amending a RIBA standard form vs using a bespoke document

Having reviewed a RIBA standard form and considered the notes above, you may decide that a RIBA standard form is
close to what you require for your project but subject to a few amendments. We recommend that you exercise caution
before attempting to make amendments to standard documents without taking legal advice as amendments to one
clause may have unintended consequences in relation to other clauses.

Constructing Excellence South West 11

 3
‘ Designer’, ‘lead designer’
and ‘lead consultant’ –
what’s the difference?

SRA Architects

Every successful project needs Whether it’s a building, a product or a service, a ‘project’
involves many parties all of whom will be a specialist in
someone with a vision and the grit their ‘part’. Then someone needs to assemble those ‘parts’
and determination to see it delivered and make them fit together carefully and beautifully. And
– and that’s no easy task! It needs a someone needs to make sure there is a good end-to-end
responsibility trail with no gaps.
designer and leader. An architect’s
On a building, there are many designers: architects,
appointment might state that the different kinds of engineers, trade contractors and others.
architect is to act as lead designer or One of these designers needs to be the lead designer. On
a building it is usually the architect; on a civils or complex
lead consultant but what do these M&E project, it is usually the engineer. Someone needs
terms mean? to make sure the client’s needs are communicated to the
team and that the designers’ questions are answered by
the client. This is one of the management roles of the lead
consultant. On smaller projects, the client might do away
with the lead consultant and communicate directly with
the designers. On larger projects, there might instead be a
‘project manager’ or ‘employer’s agent’ undertaking the role.
For a building, who’s best placed to do these roles?

12 Guide to appointing an Architect

 John Rich RIBA
SRA Architects

The role of the designer The role of the lead consultant

Clearly, the architect is perfectly placed to design the The lead consultant, or ‘project lead’ as the RIBA now
architectural elements of the building. This is so at every terms the role, is akin to a project manager. Tasks include:
RIBA Stage: feasibility, concept, developed design and establishing the project programme; helping to appoint
technical design. the consultants; issuing instructions on behalf of the
client; establishing change control procedures; reporting
The role of the lead designer
to the client; liaising with the client in preparation for
On a building this is usually the architect.
the handover. Even when there is a lead consultant,
Architects are trained to be ‘synthesizers’ not specialists. all the design consultants have direct appointments,
We know a bit, hopefully more than enough, about what or contracts, with the employer.
all the other specialist designers are doing, enough to
It is possible to appoint a ‘sole consultant’. This is one
challenge their proposals. The lead designer needs to spot
consultant, perhaps the architect, perhaps a multi-
where there are gaps and get them filled, and to negotiate
disciplinary practice. If it is the architect then they
good solutions when clashes occur. The definition the RIBA
will need sub-consultants. From experience, this is
uses is to ‘integrate and coordinate the designs of others’.
an administrative burden: appointments, warranties,
The lead designer is the visionary with grit and insurance, invoicing, payment etc.; and also a risk in the
determination, coordinating and integrating the designs event of a sub-consultant ceasing to trade or an invoice
of the specialists, spotting gaps and negotiating successful to the employer being paid late. While it may make life
outcomes where there are clashes. simpler for the employer, it does mean they lose their
ability to choose all their designers.
The days of master craftsmen being able to fashion
anything out of stone, iron and timber are gone. What about architectural fees for the different
Nowadays, as designers, we need at our fingertips an roles?
understanding of the broad capabilities of cladding It is very rare for an architect to be appointed just as
and curtain walling systems; and precast, factory designer. Designer and lead designer are the normal
made and modular components. We need an intuitive services for an architect. Indeed, before 1999, the RIBA
understanding of how far these systems and components did not even suggest that the role of lead designer could
– all engineered by specialists – can be stretched be separate.
without breaking. This is what is meant by ‘integrating
Acting as lead consultant is a management role beyond
and coordinating’. Negotiating a successful and beautiful
the normal architectural service. The fee will be in addition
compromise is a core skill.
to the normal architectural fee.
In summary
Creative architects are unsurpassed at design and also
being the lead designer integrating and coordinating
the work of the other designers. Lead consultant is
a management role and could be undertaken by an
architect but perhaps a project manager would be better
placed.

Constructing Excellence South West 13

 4
Architects and the
CDM Regulations

In any construction project, an architect, as designer,

plays one of the most fundamental roles.

Two-year jail term

for plant hire boss £300,000 fine for
after unsafe MEWP crane company after
killed worker worker killed trying
to free jib

The Construction (Design and Management) Regulations When do a designer’s duties apply?
2015 (the CDM Regulations) manage the health, safety The designer’s duties apply as soon as designs are started
Architect
and welfare of construction fined
projects from start to finish which includes concept design, competitions, bids for
and define the responsibilities according to specific roles. grants, modification of existing designs and relevant work
£180,000 after breaches
Architects fall within the category of designers. Indeed, Timber
carried out as part of feasibility studies.frame
A designer must
of CDM
the lead architect ledbeto
will often deathas the principal
appointed not start any work until they are satisfied that the client
designer found guilty
designer. of maintenance knows their obligations under the CDM Regulations.
Holding meetings orand liaisingfined
with the£1500
client to even
discuss
The CDM regulations worker
Regulations 9 and 10 of the CDM Regulations set out the though no incident a
the project can fulfil this obligation. When designing,
designer must consider the health and safety risks people
duties placed upon designers. Such duties include the
may be exposed to through the occurred
course of construction
responsibility to eliminate, reduce or control foreseeable
and its use thereafter. Designers should liaise with
health and safety risks through the design process
contractors, the principal contractor and with any other
including those that may arise during construction work or
designers, including the principal designer, so that work
in maintaining and using the building once it is built.
can be coordinated to establish how different aspects of
Who is a designer? design interact and influence health and safety.
Under
A Guidetheto
CDM Regulations
Excellence seriesa designer is an organisation Venue
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Guide of business
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Book your place at Eventbrite
 Lydia Stuart-Banks
Trowers & Hamlins LLP
Two-year jail term
for plant hire boss £300,000 fine for
after unsafe MEWP crane company after
killed worker worker killed trying
to free jib

Architect fined
£180,000 after breaches
Timber frame
of CDM led to death
designer found guilty
of maintenance
and fined £1500 even
worker
though no incident
occurred

A Guide to Excellence series Venue

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Bridgwater and Taunton College
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manage and coordinate the pre-construction phase,
Cannington
If the principal designer appoints any designers they
TA5 2LS
including any design work carried out after construction must check they have sufficient skills, knowledge and
Wednesday 15 March 2017
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Constructing Excellence South West 15
 5
Copyright – the client’s
rights including copyright
in the BIM model

Copyright – the general rules Obtaining rights over copyright material

Whilst the statutory position (discussed above) gives an
In the UK, copyright is governed by architect (or the architect’s employer, if the material was
a set of general rules which apply produced in the course of the architect’s employment)
the copyright over his/her original materials by default,
to the ownership of materials parties are free to reach an agreement which adapts or
(under the Copyright, Designs changes the standard copyright rules. In practice, this is
often the intention for construction and development
and Patents Act 1988). projects, with an author commonly granting a licence to
a third party to allow the use of its copyright material.
Put simply, these rules state that unless it has been
agreed otherwise, copyright belongs to the author A copyright licence is a flexible way of granting rights over
who produced the original material. In the context of a copyright materials, the extent and scope of the licence
construction or development project this original material being open for negotiation (i.e. do the rights within the
is likely to include written reports, photographs, surveys, licence extend to copying, reproduction and/or any future
architectural models, drawings and plans. Nobody other extension of the site? Can sub-licences be granted to third
than the author of those materials is entitled to copy, parties?). To avoid any future disputes on these points the
issue or adapt them without the author’s permission and licence should, as best practice, be recorded in an express
should they do so, the author has the right to claim for written form.
infringement of their copyright.
Whilst the licence can be prepared as a standalone
Architects even own copyright in the actual buildings they agreement, you may find that the architect’s professional
have designed, so simply copying the design of a building appointment already contains a copyright licence clause.
can be an infringement of copyright, even if the plans for Indeed, copyright licences are dealt with in various
the building haven’t actually been copied. industry standard form contracts including the NEC3
and NEC4 Professional Service Contracts (see clause
As a client engaging an architect it’s important to have
7: rights to material). Where utilising a copyright licence
a clear understanding of what rights (if any) you have
clause within an architect’s professional appointment
over the materials the architect produces. It’s highly likely
it is important to consider the document as a whole
that the architect’s drawings, plans and designs will be
and to be aware of any clauses which place restrictions
needed to support a planning application and be utilised
on the licence being granted. Provisions making a
throughout the entire life cycle of your site/development,
copyright licence dependent on the payment of all of
for various purposes and by various different parties
the consultant’s fees appear in several standard forms
(e.g. other consultants, contractors, future purchasers).
of appointment produced by the professional bodies,
Any party using those materials without the architect’s
including for example, the RIBA Standard Professional
permission will find themselves infringing the architect’s
Services Contract 2018 (clauses 6.3 and 6.8).
copyright and at risk of a claim for damages.
Copyright licence clauses are also a common feature of
collateral warranties and deeds of reliance granted to third
parties, such as funders and purchasers.

16 Guide to appointing an Architect

 Alan Tate, Jo Morris
Michelmores LLP

Key points in a copyright licence Copyright in a BIM model

In any copyright licence (whether a standalone form or The increasing use of Building Information Modelling
a clause within an appointment, warranty etc.) there are (BIM) in the construction industry throws up an array of
certain key points which should be included for a client’s additional considerations in the context of copyright. BIM
benefit: sees various different designers feeding their individual
work into a single, continuously updated ‘federated
• A warranty (and indemnity) from the architect confirming
model’ produced by the BIM manager. So, does the
that they own the copyright and/or have the necessary
creation of a single BIM model produce a separate
authorisation from third parties to grant the licence
copyright and what rights does the client have in relation
• That the licence is: to that model?
– irrevocable – it cannot be withdrawn and cannot be Standard consultants’ appointments don’t address these
terminated; and issues. However, the Construction Industry Council
(CIC) has sought to provide some clarification with the
– royalty free – no additional payment is required from
introduction of its latest BIM Protocol (Second Edition,
the client
2018)2.
• The permitted uses of the copyright material should
The CIC BIM Protocol is intended to be incorporated into
be specified
contract documents (such as architects’ appointments),
• Clarification as to whether the copyright material can varying and overriding the original contract’s copyright
be used for other projects provisions and giving effect to its own terms instead,
which state that each individual contributing consultant
• Confirmation of whether the licensee may grant
(referred to as ‘Project Team Members’) gives a
sub-licences
copyright licence to the other project team members.
• Confirmation that neither party will be liable for use of Most importantly, the BIM manager who produced the
the material for anything other than its original purpose federated model grants a copyright licence to the client.
Without the use of the CIC BIM Protocol or an alternative
form of bespoke drafting dealing with BIM, clients may
find themselves at risk of breach of copyright or even
party to a dispute with the various designers as to who
owns what within the BIM model.

2
http://cic.org.uk/admin/resources/bim-protocol-2nd-edition-2.pdf

Constructing Excellence South West 17

 6
Agreeing the fee and
paying your architect

When appointing your architect (whether under a standard or bespoke

form of appointment) you will need to negotiate and agree both
(i) your architect’s fee; and (ii) when your architect will be paid its fee.

More and more, we are seeing architects being engaged Percentage of construction cost
on the basis of new and creative fee structures. So, don’t This fee mechanism allows your architect to be paid a
be afraid to suggest some of the below options when percentage of the overall build costs that are estimated
negotiating fees with your architect to best suit the needs at the start of the project and crystallised at the end of
of your project. the project when final construction costs are known.
Whilst this is a common mechanism for an architect to
Architect’s fee
calculate its fee it is often resisted by clients, again for
The fee could be calculated on a time-charge basis; as a
cost uncertainty and the risk that escalating construction
percentage of construction cost; as a fixed fee / lump sum
costs mean an increase in your architect’s fees.
basis; or the fee could be linked to value added.
Lump Sum
Time-charge basis
This fee mechanism allows your architect to be paid a fixed
This fee mechanism allows your architect to be paid by
lump sum that is agreed / set at the outset of the project.
reference to the amount of time spent carrying out the
Your architect will usually take into account the estimated
services. It is simply calculated at an agreed daily / hourly
overall construction cost, calculate a percentage and then
rate. It is rare that we see an architect being paid on a
fix the fee. This is favourable to the client because of cost
time-charge basis, the simple reason being that every
certainty and is by far the most popular fee option.
project is different, you will not always know how much
time your architect will need to spend on the project Key to this fee option is accurately scoping out the architect’s
and there is no certainty as to the amount of fee. services (see further below). For example, some thought
about what services are to be covered in the event of
a dispute with your contractor could be an easy way to
avoid additional unforeseen costs outside of the fixed fee
arrangement further on in the project’s life span.

18 Guide to appointing an Architect

 Oliver Williams
Trowers & Hamlins LLP

Richard Francis, Director of AJ100 Architecture Practice Payment Terms

AWW comments, “By far the most popular fee option The appointment of your architect is likely to fall within
with Clients is for us to be engaged on a fixed fee, paid in the definition of a construction contract under the
tranches; this seems to be the trend for most commercial Housing Grants, Construction and Regeneration Act
projects, especially in the South West. We are, of course, 1996 (the Construction Act) and whilst industry standard
always open to consider alternative fee structures”. forms of appointment comply with the provisions of
the Construction Act it is important that any bespoke
Value Added Arrangement
appointment (or amendments made to an industry
This fee mechanism allows your architect to be paid by
standard form) contain:-
reference to value added by its services. Examples include
fees for the obtaining of planning consent or fees linked (i) an entitlement to payment by instalments, stage
to the increased value of a site or building or even its payments or other periodic payments;
ultimate sale.
(ii) intervals at which, or circumstances in which such
This is an easy win-win situation for both client and payments become due;
architect and could be structured to include clear
(iii) an adequate mechanism for determining what
incentives to deliver the project within certain timescales
payments become due and when;
or within a certain budget.
(iv) a final date for payment in relation to any sum that
Additional fees
becomes due;
Your architect may become entitled to additional fees
over and above the agreed fee in the appointment. (v) provisions for the issuing of a payment notice; and
Whichever fee mechanism is agreed it is vital that you
(vi) time period or prescribed period for serving a pay less
check the services to be performed by your architect
notice.
under the appointment. In both standard and bespoke
forms of appointment this can often be found in a Unless you are operating under some form of value-
schedule of services. In particular, you will need to check added fee option it is common for architects to be paid
which services will be deemed additional and therefore in stages linked to the project milestones. Your architect
attract additional fees. will usually issue its payment notice by way of invoices for
payment. It is important that you understand the payment
Also, your architect may become entitled to additional
provisions within the appointment (such as due dates
fees as a result of delay to the project. Say, for example,
and final dates for payment) as a failure to pay could
you instruct your architect to put a hold on the project
result in the dispute resolution provisions being invoked,
(due to planning or funding issues) your architect
in the suspension of services and / or interest being
may suffer additional cost that can justify its fee being
applied to outstanding sums.
increased. Most standard forms allow an additional fee
to be charged by an architect in respect of delays. The ball is really in your court to be creative in suggesting
a fee structure with your architect and other professional
advisors to suit the needs of your project. Whichever
fee option is negotiated and agreed make sure that the
provisions of the appointment relating to (i) additional
services (ii) the right to additional payment and (iii) the
payment terms themselves are all understood and agreed.

Constructing Excellence South West 19

 7
Professional Indemnity
Insurance and Contractual
Limitation of Liability

When mistakes are made on Professional indemnity insurance

Clients should ensure that their architect holds and
construction sites things can quickly maintains an appropriate level of Professional Indemnity
become heated and expensive. insurance (often abbreviated to PI insurance) to cover any
claims which the client may have against the consultant
Clients facing costly remedial works for negligence or breach of contract.
and reduced profit margins will be
Professional indemnity insurance generally works on a
anxious to claw back whatever they ‘claims made’ basis meaning that the insurance has to
can from contractors or consultants. be in place at the time a claim is made, rather than at
the time of the breach or negligence. For this reason,
How will the architect (or other architects (and other consultants) will normally be obliged
consultant) be able to meet such not only to take out PI insurance, but to maintain such
insurance for a period of 6 or 12 years (depending on
claims? whether the appointment is a simple contract, or a deed
with a resulting 6 or 12 year liability period).
The insurance will have a set limit of indemnity (for
example £1m, £5m or £10m), together with an excess
or deductible, and will be on either an ‘any one claim’ or
‘aggregate’ basis. ‘Any one claim’ means that the insured
sum is available repeatedly to satisfy each claim which
might be brought (sometimes this might be limited
though, for example, it may only be available once for a
series of claims arising out of the same originating event).
‘In the aggregate’ means that the limit of indemnity is
the total amount which the insurer will pay out for claims
notified in the relevant period, irrespective of the number
of claims, so if the insured amount has already been paid
out on one claim, there may not be any funds left to pay
out on subsequent claims.
To minimise their liabilities, architects (and other
consultants) will often seek to limit their liability in their
appointment document. You may hear reference to net
contribution clauses and caps on liability. A client will
need to have a basic understanding of the effect of these
limits so that it can make an informed decision as to
whether to accept them.

20 Guide to appointing an Architect

 Marcus Saunders
Stackhouse Poland
A Gallagher Company

Net contribution clauses Other limits on liability

What happens when more than one party is to blame The architect may instead (or, indeed, in addition) seek
for a design defect? Take, for example, a developer a liability cap so that it is not on the hook for unlimited
commissioning a new block of flats. The engineer could losses. The architect may seek to limit its overall liability
have been negligent in designing part of the structure. to a fixed amount, or commonly will seek to link this to
However, an architect responsible for the overall design the professional indemnity insurance limit of indemnity.
may have negligently incorporated the engineer’s The client and architect will need to agree to an amount
mistakes into its plans. that the client is satisfied provides reasonable protection.
What is reasonable protection will depend on the nature
The basic legal position is that, where two or more parties
of the project, the architect’s responsibilities and scope of
are jointly responsible for the same loss, the client can
work and the potential losses which could be incurred if
choose to sue any of the parties at fault for 100% of its
the architect does not perform as expected.
losses.
Some consultants, instead of limiting the liability to the
If this happens, the paying consultant may try and recover
level of professional indemnity insurance, link their liability
a share of those losses from other consultants who are at
to the total fee earned on the project. A client will need
fault under the Civil Liability (Contribution) Act 1978.
to give this careful consideration, as the potential losses
The effect of a net contribution clause is that each which a client could suffer in the event of negligent design
individual consultant would only be held responsible for may bear no correlation to the architect’s fee.
their own ‘fair and reasonable’ or ‘just and equitable’ share
The architect may also seek to exclude liability for things
of the loss. So, in the scenario outlined above, both the
such as misrepresentation or for consequential losses.
engineer and the architect have caused the loss. If a just
Consequential losses are losses which do not arise
and equitable apportionment of the liability for that loss,
directly from the breach of contract or negligence and
is, say 80% to the engineer and 20% to the architect,
can include things such as loss of profits, loss of use, loss
and both have the benefit of a net contribution clause,
of business etc. (depending on the circumstances of the
each consultant would only be liable for their proportion.
project). Excluding consequential losses from agreements
In order for the client to recover all of its losses in full, the
will leave the consultant liable only for losses directly
client or the beneficiary of any applicable warranty would
caused by the architect’s breach. Such clauses, and their
need to sue all parties.
precise wording, need careful consideration.
The effect of accepting such a clause, is that a client www.stackhouse.co.uk
may find it is unable to recover all of its loss, if any of Stackhouse Poland Ltd is authorised & regulated by the Financial Conduct Authority
in respect of General Insurance business. Our firm’s reference number is 309340.
the consultants responsible for the loss have gone into
liquidation or is otherwise unable to satisfy its proportion
of the claim, as each consultant will only be responsible
for its own ‘just and equitable’ share of the loss. The client
therefore takes on the ‘insolvency risk’ itself.
Funders, in particular, are reluctant to accept the inclusion
of net contribution clauses on projects they are funding,
and where they have the benefit of collateral warranties.

Constructing Excellence South West 21

 8
Collateral Warranties
and Novations

Privity of contract What is a collateral warranty?

A collateral warranty is a separate document which creates
Due to the English law concept of
a contractual relationship between, in this case, the architect
‘privity of contract’ only the parties and a third party. Usually this is a short document (typically
to a contract can enforce its terms. around 10-15 pages) executed under hand or as a deed
depending on how the appointment itself was signed.
This means that the contractual duties
Who would want a collateral warranty and when?
owed to you by your architect are Third parties who require warranties are usually: funders,
owed to you alone. For many projects purchasers and tenants. Funders often require a warranty to
be in place before they allow you to draw funds under the
this will not be an issue but for some lending facility. Purchasers may prefer to take an assignment
developments, third parties may of the appointment but the option to have a collateral
warranty should be available. Tenants who are taking a Fully
want a right of recourse against the Repairing and Insuring Lease will usually request collateral
architect and ask that you procure warranties so that if they find there are defects in the
building that they are required to remedy under their lease,
a collateral warranty from the they are able to recover some of those costs from the party
architect for their benefit. responsible for the defects, which may include the architect.

22 Guide to appointing an Architect

 Anna Wood
BPE Solicitors LLP

What are the key terms of a collateral warranty? Why novate?

The language of the collateral warranty should reflect Under design and build, as noted above, preliminary
the language of the appointment (i.e., definitions should designs are procured by the client before the contractor
match). Under the collateral warranty, the architect gives is selected. It is then the contractor’s job to finalise the
undertakings to have exercised a certain standard of designs and bring them to life in the construction. The key
care in designing the works and specifying materials, advantage for the client during the works is that once the
grants a copyright licence to the beneficiary in respect of architect becomes a consultant to the contractor, the task
the drawings, and undertakes to maintain professional of co-ordinating the design with the construction is solely
indemnity insurance. A collateral warranty does not put the responsibility of the contractor. Once the works are
any obligations on the beneficiary (e.g., the architect complete, in the event of any defects, the client can turn
cannot demand payment from the beneficiary) except in to the contractor as he has ‘single point design liability’:
relation to Step In Rights. These are rights which only bite it matters not whether the problem is one of design or
in specific circumstances and which allow the beneficiary of construction, ultimately the contractor is responsible.
to step in to your shoes and directly engage with the
How do you do this?
architect if you are no longer involved in the development.
The process of novation is simple and involves a short
Until Step in Rights are active, the beneficiary cannot give
Deed of Novation which needs to be signed by you, the
instructions to the architect – that remains solely your
architect and the contractor. It has the effect of ending the
right.
contractual relationship between you and the architect
Will the architect charge for providing collateral and creating a new contractual relationship between
warranties? the contractor and the architect. All the terms of the
It is important to be up front with the architect from architect’s appointment are transferred across to the
early on as to whether or not you may require collateral contractor meaning that he is responsible for paying the
warranties so that they can factor this into their fees. If you architect going forward. It is important that the parties
later request additional warranties the architect may seek are all clear on how much the architect has been paid to
to charge additional fees, which is a commercial matter date and how much more he expects to be paid for the
between you and your architect. remainder of the project.
Novations Post-novation collateral warranties
For most construction projects, there are two main As discussed at the start of this chapter, the doctrine of
procurement routes: traditional (where the contractor privity of contract means that following novation, you no
is given the architect’s drawings, which he then follows) longer have a contractual relationship with the architect.
or design and build (where the contractor takes Ordinarily this is fine: if there are any problems with the
responsibility for both the design and the construction development you would pursue the main contractor.
of the building). Developers using the design and build However, if the main contractor were to cease trading
route usually engage an architect from an early stage to you would want the option to bring a claim against the
carry out feasibility studies and to prepare drawings for architect. In order to do this you would need a collateral
use in planning applications and tender packs. Once a warranty from the architect. This should be signed at the
design and build contractor is engaged, it is common for same time as the deed of novation.
the architect to then work directly for the contractor for
the remainder of the project. The process of transferring
the architect from you to the contractor is called novation.

Constructing Excellence South West 23

 9
Dispute resolution –
Mediation and ADR

Key Information: The three most common methods of alternative dispute

• Introduction resolution used in the UK were ranked by Arcadis as:
• What is mediation?
1) Party to party negotiation
• When to mediate?
• The process 2) Adjudication
• CESW Mediation Guide and Protocol and Resources
3) Mediation
Introduction
The RIBA suite of professional services contracts 2018
The Sixth Annual Arcadis Global Construction Disputes
includes references to mediation as well adjudication and
Report 2016 identifies the top 3 causes of a dispute as:
a final dispute resolution process of either arbitration or
1) Failure to properly administer the contract. court proceedings.
2) Incomplete design information or employer We take a closer look at adjudication, arbitration and
requirements (for Design and Build). court proceedings in Chapter 10. They are adversarial
processes. A recent study into the use of adjudication in
3) Employer/contractor/subcontractor failing to
the construction sector revealed a growing dissatisfaction
understand and/or comply with its contractual obligations.
with the process; experience of adjudication significantly
The RIBA ‘Feedback from the ‘Working with Architects’ reduces the desire to use the process again.
Client Survey 2016’ found that architects’ design skills
It has been suggested that parties to adjudication are
are highly rated but consistent with the Arcadis report
unlikely to work together again.
revealed that managing the process (including contract
administration) is less well rated. This section of the Guide therefore promotes a reversal
in the culture of adversarial forms of dispute resolution by
 hilst disputes are perceived to mainly concern the
W
considering mediating before the more confrontational
employer and contractor relationship, architects are not
approaches.
immune from the knock on effects from such disputes.
Disputes also arise with the employer that might not What is mediation?
concern the contractor. Mediation is a voluntary and confidential process of
alternative dispute resolution (ADR), in which a neutral

When disputes occur, the appointment document
independent person assists the parties to negotiate a
becomes key. A robust appointment document will
settlement of a dispute. The parties retain control of
contain provisions on dispute resolution.
whether or not to settle and on what terms.
The most common style of mediation is facilitative
mediation in which the mediator will facilitate agreement
between the parties. Unlike a judge, arbitrator or
adjudicator the mediator will not be required to make
a decision. Instead the parties will need to persuade
each other of their positions, facilitated by the mediator.
Sometimes, mediators may be asked to adopt a more
evaluative style of mediation and evaluate the strengths
and weaknesses of a particular case to encourage
settlement. This approach is gaining in popularity.

24 Guide to appointing an Architect

 Christopher Reeves
Mediation for Construction

Benefits
By comparison to more adversarial methods of dispute
resolution such as litigation, arbitration or adjudication
mediation is:
• Quick
• Low cost
• Collaborative
• Less risky

Recent statistics produced by the Centre for Effective

Dispute Resolution show that 67% of mediations settle
on the day of the mediation and a further 19% settle
shortly afterwards. Put another way, 86 out of 100
mediations will result in a settlement because of the
mediation process.
Encouragement of the Courts
The courts actively support mediation. The Pre-Action
Protocol for Construction and Engineering Disputes
2nd edition published under the Civil Procedure Rules,
requires that the parties to a dispute should normally
meet in order to agree what are the main issues in the
case, to identify the root cause of disagreement, and to
consider whether the case might be resolved without
recourse to litigation. The meeting can itself take the
form of an ADR process such as mediation. The Courts
however cannot order parties to participate in mediation
but have held that a party to a dispute who unreasonably
refuses to mediate could be liable to cost sanctions.

Constructing Excellence South West 25

Dispute resolution – Mediation and ADR
(continued)

Mediation in contracts
From an employer’s point of view there are therefore
clear benefits in promoting mediation in not only the
architect appointment documents but also the contract
with the contractor. Employers ought to consider taking
this up with the architect in the early stages of preparing
contract packages.
Contract publishers such as the JCT also include
provisions within its contracts which encourage the use
of mediation. Given its opening emphasis on “a spirit of
mutual trust and co-operation” it is perhaps surprising
that the NEC suite of contracts has not built in any forms
of alternative dispute resolution, however parties may
consider provision for mediation by the addition of a
mediation incorporation clause as an amendment to
contract documents from the architect’s appointment to
the contract with the contractor. A model form of clause
is at item A in the section on resources below.

When to mediate?
Mediation can take place at any time but generally
mediation should be used when the parties to the
dispute recognise that they have an incentive to settle.
This usually occurs once the issues are properly defined
and there has been a proper exchange of information
and documents. If the parties need further information
to properly understand the nature of each other’s cases,
then it is possible to agree provision of information as
part of the mediation process.
If the benefits of mediation are to be realised it
is wise to engage in mediation at the earliest
possible stage.

26 Guide to appointing an Architect

 The Process  ESW Construction Mediation Guide and Protocol
C
There are 7 stages in a typical mediation: Constructing Excellence South West, in collaboration
with Mediation for Construction and Insurance (M4CI),
• Referral: The parties identify the dispute and agree to
has identified the need to highlight how mediation can
mediate. A model form of letter proposing mediation is at
and should be used to resolve disputes and in order to
Resource Item B.
promote the greater use of mediation have produced the
• Agreement to mediate and terms: Identify the mediator Construction Mediation Guide and Protocol:
and agree terms. A model form of contact for the
https://www.constructingexcellencesw.org.uk/assets/
appointment of a mediator is at Resource Item C and
Downloads/Mediation_Protocol_EMAIL.pdf
mediation agreement is at Item D.
The Guide provides a set of guidance rules, called the
• Briefing the mediator: Provide the mediator with enough
‘Protocol’ at each stage of the process, and a number
information to understand the dispute to be mediated.
of model documents and clauses which can be used or
• Setting of the procedure: Establishing the best approach adapted for mediation.
and set the date for the mediation meeting.
Resources
• Exchange of Information: Identify and exchange Adopting the Guide the following resources are available to
documents subject to any reasonable objection. download here:
• The mediation meeting: The conduct of meeting sessions A Incorporation Clause (set out on page 17 of the Guide
with the mediator in private. at https://www.constructingexcellencesw.org.uk/assets/
Downloads/Mediation_Protocol_EMAIL.pdf)
• The outcome: Record the terms of settlement. An
example of a form of settlement agreement is at item E. B Referral Letter (https://goo.gl/ICGX54)
If settlement is not reached the parties may use C Contract for the Appointment of a Mediator
the discussions at the mediation to identify reasons (https://goo.gl/pbN330)
for settlement not being reached and agree further
D Mediation Agreement (https://goo.gl/lY0qiz)
settlement talks will take place after the mediation.
E Settlement Agreement (https://goo.gl/bEBTkN)

Constructing Excellence South West 27

 10
Dispute resolution –
adjudication, arbitration
or litigation – understanding
the differences

One element of the appointment of your architect will be the dispute resolution
provisions. Whilst parties would no doubt hope to have a smooth running
project, disputes are a fact of life. If mediation and other ADR methods (see
Chapter 9) have not resulted in a resolution of a dispute, which of the formal
procedures (litigation, arbitration or adjudication) is right for your dispute?

Parties to a construction contract (including most architects’ Adjudication

appointments) have a statutory right to refer disputes to Adjudication is a relatively quick dispute resolution method
adjudication (see more on this below), but when it comes (the process can take as little as 28 calendar days). It is
to arbitration or litigation, the parties can, if they wish, select often described as a ‘pay first, argue later’ mechanism for
at the outset their preferred mechanism. Unlike litigation, resolving disputes. Whilst initially envisaged for disputes
if a party wishes to arbitrate a dispute, there must be concerning interim payments, delay and disruption and
an agreement to do so in writing between the parties defects claims, adjudication can be used to resolve a whole
(either in their contract or subsequently). range of disputes including breach of contract, termination
disputes and professional negligence.
Litigation and arbitration are alternatives and are
processes leading to a final determination of a dispute by Parties to a ‘construction contract’ (as defined by the
a judge or arbitrator. Adjudication is a separate fast track Housing Grants Construction and Regeneration Act 1996
process whereby the adjudicator (usually a construction as amended) have the statutory right to refer a dispute
professional) can decide a dispute within 28 days with the to adjudication at any time (unless the contract is with a
decision having to be honoured and being binding (subject residential occupier). Appointments of architects fall into
to any later different final award by a judge or arbitrator the definition of a ‘construction contract’ and as such,
should this be pursued by one of the parties to the dispute). save where there is a residential occupier, adjudication

28 Guide to appointing an Architect

 Stephen Homer, Lianne Edwards
Ashfords LLP

is usually available to the parties to resolve a dispute. In The perceived advantages of arbitration
these circumstances, even if the contract does not specify Flexibility – Just as the parties must agree to arbitrate, they
adjudication as a possible dispute resolution option, the right can also agree which procedural rules apply, and the identity
is conferred by statute. If the client is a residential occupier of the arbitrator. This allows the parties to tailor the arbitration
(someone who lives in, or is going to live in, the property as to their particular dispute.
their main home) then the right to adjudicate isn’t implied
Confidentiality and Finality – A key consideration is the
by statute, but can still be expressly included in the contract.
confidential and final nature of the arbitration process.
The process of adjudication is generally a very speedy Litigation is rarely private, with court proceedings usually
process involving the appointment of an adjudicator and open to the public and court documents relating to the
written submissions and responses from each of the parties. dispute often publicly available (even to non-parties).
Conversely, arbitration hearings are usually held in private
Once the written submissions are considered (and in rare
and there is no public record of the dispute. Arbitration also
cases a site visit or meeting undertaken) the adjudicator
arguably offers greater finality with only very limited scope
issues his or her decision. The decision is binding until
for challenging an arbitral award in the courts.
finally determined by court proceedings, arbitration or by
agreement. Arbitration Pitfalls
Arbitrator’s Lien – An arbitrator’s lien allows the arbitrator to
In the event the losing party doesn’t honour an adjudication
refuse to release his decision until any outstanding fees have
decision it is readily enforced by the courts through a short
been paid. If the other party refuses to pay, one party can
procedure in the Technology and Construction Court and
be left to pay all the outstanding fees to obtain the decision
adjudication is a useful procedure for a quick resolution of
leaving the paying party with the issue of trying to recover
a dispute. However, there are substantial time constraints
from the non-paying party.
on the process and limited evidence can be prepared
compared to that which would be prepared in arbitration Arbitrator’s fees and venue costs – Whilst the parties’
or litigation. Adjudication is therefore considered to be legal fees are likely to be similar in litigation and arbitration,
‘rough justice’ in some cases. in arbitration the parties must also pay the arbitrator’s fees
plus administrative costs (such as room hire for hearings
It is also worth bearing in mind that advisers’ costs incurred
and travel expenses of the arbitrator). This can be a relatively
in adjudication are generally not recoverable as part of the
substantial outlay compared to the cost of court proceedings.
adjudication process or in subsequent litigation or arbitration.
What dispute resolution method should you use?
Litigation or arbitration?
Simply put, this is dependent on the dispute at hand and the
The default position is that unless the parties have agreed
parties involved. Adjudication is popular because of its speed
otherwise in writing the courts will finally determine any
and relative cost effectiveness. The main downside is the
claim between the parties. However, either at the outset
element of ‘rough justice’ inherent in a fast track process and
or later, the parties can agree to any future dispute being
the fact that the other party can still take the original dispute
decided by an arbitrator (essentially a private judge) instead
to litigation or arbitration should they choose to do so. The
and one reason cited for doing this is to appoint an arbitrator
choice between litigation or arbitration in respect of a final
with technical expertise, for example, an architect arbitrator.
determination of any dispute is finely balanced and you may
want to take advice before agreeing to an arbitration clause
in any appointment document.

Constructing Excellence South West 29

This Guide to appointing an Architect has been produced
by Constructing Excellence South West’s drafting team:

Stephen Homer For more information

[email protected] contact us at:
Lianne Edwards [email protected]
[email protected]
www.cesw.org.uk

Anna Wood
[email protected]

John Rich
[email protected]
Disclaimer
This guide is for information purposes only and
does not constitute advice including legal advice.
Lydia Stuart-Banks It is recommended that specific professional advice
is sought through your professional advisor before
[email protected] acting on any of the information or opinion given.
Oliver Williams
The views and opinions expressed in the articles
[email protected] in this guide are those of the relevant authors and
do not necessarily reflect the views and opinions of
Constructing Excellence South West Limited nor the
other authors.
Alan Tate Copyright
[email protected] Copyright in all and every part of this publication rests
with Constructing Excellence South West Limited,
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[email protected] Trowers & Hamlins LLP, Michelmores LLP, Stackhouse
Poland and Mediation4Construction and all rights
are reserved. Save by prior consent of the authors,
no part or parts of this publication may be reproduced
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