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Lunchtime Webinar Report: Consultants – Is your duty of care under attack?

Fiona Mckay

On the 3rd of May AIA UK members were invited to attend another of Beale and Company’s popular lunchtime legal webinars. The subject was how the use of new standard owner/consultant contracts place a more onerous duty of care requirement on architects than the traditional “reasonable skill and care” clauses of earlier contract versions. Entitled, “Is Your Duty of Care Under Attack?”, the webinar was presented by Will Buckley and Simi Sivapalan. Attendees received one continuing education learning unit for attending.

Traditional standard forms of contract, such as those provided by the RIBA and ACE make statements such as “exercise reasonable skill and care in conformity with the normal standards of the Architects’ profession” and “exercise reasonable skill, care and diligence in the performance of the Services”. Architects need to be aware that new versions of standard forms of contract from the ACE, FIDIC, NEC4, and the RIBA provide for an elevated duty of care! These contracts have moved beyond the use of “reasonable skill and care” with clauses such as those shown in the slides below.

The new contracts also have more onerous requirements regarding fitness for purpose, specification of deleterious materials, and use hard to define terminology such as “in the spirit of mutual trust and cooperation”. The webinar also addressed non standard contracts like those often provided by clients. These must be reviewed carefully as they often contain clauses that impose an even higher standard of care. Watch out for clauses such as those illustrated in the slides below.

The presenters discussed several recent legal cases to illustrate the challenges an elevated duty of care can present to design professionals. The important “take aways” from this fascinating webinar are:

  • Where possible, try and limit standard of care to “reasonable skill and care”
  • Include an overarching duty to exercise reasonable skill and care
    •  But remember, an obligation to use reasonable skill and care is not an overriding provision unless stated
    • Best practice to qualify strict obligations by “exercising reasonable skill and care” “subject to” wording may not always be sufficient
  • Check for hidden obligations - strict and fitness for purpose obligations may not always be obvious Civil liability policy is much preferred to a negligence based one!

For further information on this subject, Will Buckby can be contacted at 020 7469 0411 and w.buckby@beale-law.com

Also, AIA UK members have access to the free Legal Helpline provided by Beale & Co at (0) 20 7469 0400 (please quote “AIA UK Helpline”).

By Michel Lischer FAIA

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Continental Europe’s 5-8 May 2017 Conference: Treasures of the French Riviera

Fiona Mckay

Last October, the AIA Continental Chapter held its bi-annual conference in North Cyprus.  This May, it followed up the Mediterranean theme with a conference in the south of France – but, from the start, the country differences could not have been more evident.  Even the economy bus from Nice airport to Menton could not avoid the glamorous French coastline, teeming with residences and hotels of all sizes and styles from the merely functional to the Grimaldi inspired.  

Instead of exploring wet balconies and roof tops, the bad weather encouraged a closer look at Gray’s surprising interiors, furniture and artwork – Photos: Lorraine King, AIA and Michael Lischer, FAIA Menton welcomes the AIA at the Cocteau Museum – Photo: Lorraine King, AIA

Instead of exploring wet balconies and roof tops, the bad weather encouraged a closer look at Gray’s surprising interiors, furniture and artwork – Photos: Lorraine King, AIA and Michael Lischer, FAIA Menton welcomes the AIA at the Cocteau Museum – Photo: Lorraine King, AIA

Tourists thronged the streets of Monaco as it prepared for its upcoming Grand Prix.   The Mediterranean simply sparkled while millionaire yachts bobbed about and looked bemused by all the fuss.

So what - amongst all this hustle and bustle - had Continental selected as its own particular take on “Treasures of the French Riviera”? Well, Menton itself for a start.  Nicknamed the "Pearl of France", it proved a quieter, gentler antidote to Monaco with  an historic old town reached by steep stairs and a long line of accessible beaches.  Its modern building of note - the Cocteau Museum (architect Rudy Ricciotti) – hosted the opening reception. 

The first full day of the conference was devoted to Cap Modern and Eileen Gray’s modern Villa E-1027 (familiar to followers of the UK Chapter’s movie nights from its showing of “Price of Desire” last year).  Attendees were lectured on the history, significance and renovation works at Cap Modern and given a private tour of Villa E-1027 plus Le Corbusier’s nearby “cabanon”, work hut and holiday cottages.   Despite the cold and wet weather (that promise of the sparkling Mediterranean not having held up overnight) the site with its memories of past personalities could not help but intrigue.    

Instead of exploring wet balconies and roof tops, the bad weather encouraged a closer look at Gray’s surprising interiors, furniture and artwork – Photos: Lorraine King, AIA and Michael Lischer, FAIA

A ray of sunshine got through for Corbusier’s colorful holiday cottages – Photo: Michael Lischer, FAIA

A ray of sunshine got through for Corbusier’s colorful holiday cottages – Photo: Michael Lischer, FAIA

As brilliant weather returned for the second day, the conference progressed to three extraordinary gardens of the Riviera – the Val Rahmeh Botanical Garden and the Serre de las Madone Gardens (landscape architect Laurence Johnston) both in Menton and the Hanbury Gardens across the border in Italy.  

The third day saw the departure from Menton and took the group to two further treasurers.  The Matisse Chapel was an unexpected delight – a little space of pure joy and light. The Fondation Maeght (architect Josep Louis Sert) housed an extensive modern art collection, but its prime charm was the building itself it its garden setting, including the renowned Labyrinth of Miró.

The Fondation Maeght and Labyrinth of Miró at– Photos: Lorraine King, AIA and Michael Lischer, FAIA

The list of personalities influencing the venues was long and strong – Architects Eileen Gray , Le Corbusier and Josep Louis Sert; English gardeners Sir Thomas Hanbury and Laurence Johnston; French artists and designers Jean Cocteau, Joan Miró and Henri Matisse – and gave the conference a feel for cultural as well as architectural treasures.

The Menton conference was organized by CE members Isabel Meinecke, Int’l Assoc AIA, and Ray Spano, AIA, with assistance from several other CE members.  There were 16-17 CEUs on offer, including 4-6 HSW units, enjoyed by the 5 AIA UK attendees.

The next CE Conference will be held in Prague, Czech Republic, 5 – 9 October 2017.  This conference will be a larger event held in conjunction with the International Region and attendance is expected to reach capacity early.  If you are interested in attending, you are advised to register as early as possible to avoid disappointment.

By Lorraine King AIA

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Beale & Company Article: Early warning obligations in Consultancy Appointments

Fiona Mckay

The ACE Professional Services Agreement 2017 ("ACE PSA") is the latest standard form contract to include an "early warning" regime, as highlighted in our summary of key points in our recent note on ACE PSA.

Tom Pemberton and Andrew Croft discuss early warning regimes and how they aim to "flush out" issues at an early stage before they escalate. However, they are not without their risks and need to be managed carefully.

Click here to read the full article.

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Beale & Company Article: Reports from the Courts

Fiona Mckay

Our regular round up of court decisions of most interest to construction comes from Andrew Croft and Simii Sivapalan and focuses on two disputes over oral contracts; one with major implications for 'smash and grab' adjudications; and the other highlighting the importance of agreeing costs and the basis of their calculation at the start of any construction contract.

Click here to read the full article.

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Beale & Company Article: The future of PFI - Summary of key points made during a panel discussion on 26 January 2017

Fiona Mckay

Beale & Company and Atkin Chambers hosted a panel-led discussion earlier this year entitled 'Making PFI Work'. We were honoured to have Sir Antony Edwards-Stuart (Judge in Charge of the Technology and Construction Court until his retirement in November 2016) chair the panel of speakers. They consisted of Andrew Goddard QC and Stephanie Barwise QC of Atkin Chambers, and Tom Pemberton of Beale & Company.

Here we provide a summary of the key points made during the panel discussion.

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2017 Annual General Meeting Review

Fiona Mckay

The AIA UK Chapter Annual General Meeting is a unique mixture of social evening, continuing education event and business meeting all in one. Following a long tradition from the 1990’s, this year’s AGM - held on Wednesday, 18 January 2017 - was hosted by our long term sponsor, Herman Miller.

Herman Miller’s showroom provided an ideal background for socialising, including copious refreshments. Mark Catchlove, Director of Herman Miller’s Knowledge & Insight Group, gave a presentation entitled “Fundamental Human Needs” that both amused and informed, while providing a welcome CEU for members.

The 2016 President, Fred Grier, moved back to Chicago late in the year, but maintained his leadership role via internet links until the AGM. His presentation of “2016 Year in Review” highlighted over 30 AIA UK events with nearly 60 Continuing Education Credits. See the full review HERE.

The slate of proposed 2017 Board of Directors was announced along with the encouragement – as always – for further nominations to be presented from the floor. Voting was unanimous for the following.

President: Fatos Peja, Int’l Assoc.
Vice President: Alex Miller, AIA
Secretary: Lorraine King, AIA
Treasurer: Anna Foden, AIA

Directors:
Etain Fitzpatrick, AIA (also IR Representative)
Michael Lischer FAIA
Chris Musangi, AIA
Deborah Bartlett, Int'l Assoc. AIA
Lutz Barndt AIA
Amrita Raja, AIA
Yevgeniy Beylkin Int'l Assoc. AIA ARB RIBA
Robert Rhodes, AIA
Ecehan Esra Top, Int'l Assoc. AIA
Bea Sennewald, AIA RIBA
Lester Korziliius, AIA RIBA
Benjamin Lee, AIA  
Katharine Storr, AIA
Fariba Shirdel, AIA
 

AIA Board Correspondents:
A non-voting Board Correspondent is a full, part-time or temporary attendee at Board Meetings. Any unassigned member; allied and affiliate member; honorary member or other professional with an interest in this Chapter can become a Correspondent at any time during the year. The position of Board Correspondents was formalised this year for three new participants.

Lulu Yang
Fred Grier
Nicolas Kehagias.

Chapter Executive: Fiona McKay

The business side of the AGM was kept as succinct as possible, but the AGM remains as always the critical focus for the Chapter’s governance. In addition to the essential approval of the Accounts, membership report and election of the new Board of Directors, this year’s business also included a motion to approve the revised Chapter Bylaws. 

According to the new procedures, the Bylaws were sent out by email to the full AIA UK Chapter membership for any final comments in February. As no comments were received, the Minutes are now deemed to have been approved.

READ THE FULL MINUTES OF MEETING HERE

 

By Lorraine King, Secretary UK Chapter

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