THE BOARD OF TRUSTEES OF THE NATIONAL MUSEUMS AND GALLERIES ON MERSEYSIDE v AEW ARCHITECTS AND DESIGNERS LTD
Technology and Construction Court
31st July 2013
There were defects in the completed works which the employer blamed on the contractor’s deficiencies in its design. The contractor began an adjudication against the employer in which it successfully sought a declaration that it was not contractually responsible for its design. The employer as the unsuccessful party was directed by the adjudicator to pay its own legal and expert costs of the adjudication and the adjudicator’s fees.
After the adjudication the employer (i) brought court proceedings against the architect (ii) contended that the architect was responsible for the contractor’s defective design on the basis that the adjudicator was right in deciding that the contractor was not responsible and (iii) claimed from the architect its costs and the adjudicator’s fees which it had been directed by the adjudicator to pay (and had paid). Akenhead J held that the architect was responsible for the contractor’s design of the work elements in question and had been negligent in carrying out its design of those elements
The architect submitted that (i) the employer fought the adjudication knowing that even if it was successful, it would not recover its costs, the decision would only have temporary finality and costs would not be recoverable from the contractor in subsequent proceedings (ii) It should therefore not be liable for the employer’s costs of the adjudication where those costs would not have been recoverable irrespective of the outcome of the adjudication and (iii) The employer’s claim merely was a backdoor method of attempted cost recovery.
Akenhead J rejected the architect’s submissions and awarded the employer its costs of the adjudication (including its legal and expert witness fees). The basis expressed by him for his decision was that (i) It was within the bounds of reasonable foreseeability that there could be an adjudication brought by the contractor against the employer to establish that it did not have design responsibility (ii) There was a sufficient causative link between the architect’s defaults and the adjudication and (iii) There was no suggestion that the employer’s solicitors had acted negligently or that the employer had acted unreasonably in opposing the declaration sought by the contractor in the adjudication.