Design responsibility for Employer’s Requirements
I’ve been involved in adjudication since its inception, at the start both preparing adjudication Referrals and Responses and latterly acting as an Adjudicator. Below are some of my thoughts on adjudication.
In the recent case of Workman Properties Ltd v Adi Builidng and Refurbishment Ltd [2024] EWHC 227 (TCC), the parties entered into a JCT Design & Build contract 2016.
In this contract, the Recitals stated that Adi had examined the ER’s and had agreed to accept full responsibility for any design contained in them.
However in the ER’s, a section stated that “significant design has been developed to date which has been taken to end of RIBA Stage 4”.
You can see where this is going!
Adi subsequently submitted a claim that the design in the ER’s was not up to Stage 4, and claimed additional time and costs.
In a subsequent adjudication, the adjudicator upheld Adi’s claim; which when I read the article, I thought was reasonable.
However, Workman then brought TCC proceedings to challenge the adjudicator’s decision. The TCC found in favour of Workman, and stated that all of the relevant contract terms firmly pointed to Adi taking full responsibility for the entirety of the design and that the wording in relation to RIBA Stage 4 was nowhere near sufficient to require the qualification of the ER’s. And this was particularly the case where those provisions for design responsibility imposed far greater design responsibility than under the unamended JCT.
I have sympathy for the adjudicator in the above adjudication and think his conclusion and decision was reasonable. I suppose it just goes to show that the courts have the last word.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.
BDAS specialise in: providing contract advice, resolving construction disputes, managing construction claims & adjudications and will give you competitive, independent advice tailored to your specific construction problems.
If you could benefit from this please call Jon now on 07795 231 231 or email: Enquiry@BDAS.co