MILLER CONSTRUCTION (UK) LTD v BUILDING DESIGN PARTNERSHIP
Scotland, Outer House, Court of Session
2nd May 2014
The design and build contractor decided to change the type of ventilation unit from "Passivent" to "Renson". This resulted in the ventilation system being inadequate to meet the contractual requirements for the fresh air flow rate and the contractor having to install a new system. The contractor sought to recover the cost of the new system from the architect.
The contractor in its notice of adjudication alleged that the architect was in breach of contract; and in any event failed to meet the standard of skill and care required of a competent mechanical and electrical engineer in providing a defective design. The contractor contended in the adjudication that the architect undertook responsibility for the design of the development, including the ventilation system with the new unit. The architect contended that it was not required to examine the design of proprietary products supplied by the contractor and had advised the contractor that the Passivent units were the only suitable solution. The adjudicator decided that the parties shared responsibility for the inadequacy of the Renson system and should be liable for the replacement costs on a 50-50 basis.
The architect opposed enforcement of the decision on the basis that the adjudicator breached the rules of natural justice because (i) He determined the dispute on a basis which had not been raised by either party (ii) The contractor’s case was presented solely on the basis of its alleged professional negligence (iii) There was no scope for a finding of breach of contract upon some other basis and (iv) It should have been given an opportunity to address the approach which found favour with the adjudicator.
Lord Malcolm rejected the architect’s contention. The broad issue remitted to the adjudicator was whether the architect undertook responsibility for the design of a defective ventilation system. Whilst there was an offer to prove professional negligence, there was nothing to support the view that the contractor's case depended on that or that it was not open to the adjudicator to conclude that the architect as the lead consultant carried some responsibility for the deficiencies in the system given its design obligations and ongoing involvement in the design process once the Renson units were chosen because there was (i) Factual evidence that the architect and the sub-consultants communicated directly with Renson throughout the design period and (ii) Expert evidence that the architect should have coordinated the alternative Renson units into the overall design and assessed the suitability of those units to provide the required performance.