Is it ever worth calling in the lawyers? (by a lawyer)

David Chipperfield is the latest high-profile architect to take a client to court, but every architect will face that dilemma at some point in their career. Lawyer Laurence Cobb urges caution

I always thought it must be nice to be able to stroll around a city, point to a building and say “I designed that” and to have something as a monument to one’s creative skills. However, issues with some recent high-profile buildings such as Jean  Nouvel’s Philharmonie de Paris and David Chipperfield’s Museum of Culture in Milan appear to show that issues of aesthetics can be potentially drowned out by issues of money.

Many if not all architects and others fulfilling a design role will have, from time to time, encountered difficulties getting paid. There are many reasons why suing for your money may not be an attractive option.

Let’s start with the contract. That document will form the basis of any claim. Often, there is no formal contract in writing but perhaps a few exchanges of letters and emails generally covering the scope of work with a description of the project. Even if the contract documents are in better shape, the scope of services is either undefined, ill-defined or suffers significant scope creep during the course of the project. 

That is made worse by operating in an industry where there are many parties involved on each project and confusion abounds concerning the extent of the project management role or range of technical expertise.

A poorly documented contract can then lead to a poorly documented project. Time and cost pressures often start to push a project out of the ground before it is fully designed and as a result the architect can be swept away in a snow storm of variations, large and small. Failure to record these in an appropriate manner can not only affect the architect’s fees but can also contribute to the risk of cost overrun on a project.

The architect is in a hamster wheel running like mad to keep still, with no time to create paperwork or indeed stop for further sustenance. But the architect continues to run forward in the wheel enthusiastically desperate to please the client, however over-demanding. Being an optimist by nature the architect in his or her new role as hamster on the wheel not only continues to run as fast as s/he can but is constantly worried that s/he will fall off the wheel and find no further wheels to run around because s/he will never get another job from that client again. Trapped by a combination of fear of imminent demise and hope of bigger and better things, the architect races on remorselessly.

Before this article turns into a version of Animal Farm we should bring it back to some simple home truths. Poor documentation, of contracts and projects, and commercial pressures should make the architect think long and hard before fighting for fees. Add to this the cost and time litigation involves and the potential for regret is clear.

Even worse, if an architect makes a claim for fees it is likely that a client will raise allegations of poor performance. As soon as that happens, the architect will be left with no alternative but to refer matters to his or her insurer. To a great extent the whole process of fee recovery will be taken out of the architect’s hands and potentially threaten to inflate the cost of further insurance.

The difficulties in securing payment for fees can be illustrated in two recent decisions. In the first, William Clark Partnership Ltd v Dock St PCT Ltd (2015), the TCC (Technology and Construction Court) awarded a quantity surveying professional services practice damages for unpaid fees, subject to deductions for losses arising from its negligence. In so doing the court confirmed that deductions could be made if some of the services were performed “so poorly that they were worthless”.

In D&K Drost Consult GmbH & Anor v Foremost Leisure (Holdings) Limited (2015), the German architect sought to recover its fees under an agreement and, although it was ultimately successful, this was not before the developer had appealed to the Court of Appeal.  

Fighting to recover fees is not for the faint hearted. It can be and is done, but think carefully about the implications before going into battle as it may not always be worth it.

Postscript:

Laurence Cobb is partner in the Construction and Engineering team at international law firm Taylor Wessing

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