UK: So Who Does Take Design Responsibility?

The recent decision of the Technology and Construction Court in Co-Operative Insurance Society Limited v. Henry Boot Scotland Limited, Henry Boot Plc and Crouch Hogg Waterman Limited may surprise some industry participants in answering this question and dispel the common understanding, that has been held since the Joint Contracts Tribunal first introduced the design and build form in 1981, that this form of contract was never intended to provide for single point design responsibility.

In this case Henry Boot Scotland Limited ("Henry Boot") was a contractor for the Co-operative Insurance Society Limited ("CIS") in relation to the demolition, design and reconstruction at a property in Glasgow. The form of contract was JCT 1980 (Private with Quantities) amended by the Contractor’s Designed Portion Supplement. Crouch Hogg Waterman Limited ("CHW") were engaged by CIS to act as consulting engineers in connection with the execution of the Works.

During the execution of the Works water and soil flooded into sub-basement excavations. Both Henry Boot and CHW were sued and one of the preliminary issues that was agreed to be tried was the contractual liability of Henry Boot for the design of the piled walls.

Henry Boot submitted that its only contractual obligation in relation to the design of the piled walls (which formed part of the Works) was to prepare working drawings in respect of the concept devised by CHW. The relevant clause in the contract stated that:

It was held that the obligation of Henry Boot under the contract was to complete the design of the bored piled walls and that this process involved examining the design at the point at which responsibility was taken over from CHW. In the judgement it was stated that Henry Boot was responsible for assessing the assumptions upon which the design was based on forming an opinion whether those assumptions were appropriate.

The ramifications of this decision for contractors who are only obliged to "complete" a design begun by someone else are far reaching. As a result of this decision regardless how much of the design work is done before the process of "completion" is commenced, the Contractor in fulfilling its duty to exercise reasonable skill and care, will now be required to ensure that the conceptual design of the client or its designers is appropriate so that the Contractor develops the conceptual design into a completed design capable of being constructed.

Insurers providing professional indemnity cover to Contractors under this form of contract should also be aware of the scope of cover required as a result of this decision.

© Herbert Smith 2002

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