UK: The New British Library Case - The Difference between Insuring and Ensuring

Last Updated: 5 January 1999
The New British Library Case - The Difference between Insuring and Ensuring

Patrick Holmes

As construction projects go, few can have greater notoriety than the new British Library at St. Pancras. We shall probably never know who are the real villains in this sorry tale - it is likely that there were many. However, from the privileged position of knowing virtually nothing about the project at first hand, I should like to nominate the project insurers as candidates for the hall of shame.

I have nothing against insurers generally. As their involvement in the industry grows, I would make few friends by saying that I have. Rather, my complaint arises having read the judgement of the Official Referees Court in the so-called British Library case.[1]

One of the problems which emerged during the course of the project was severe damage to electric cables. There was a claim under the project insurance policy for the cost of putting right the damage and the delay associated with it leading to a total payout by the insurers of £8.4million.

The insured parties under the project policy included the government client, the construction manager and the M&E contractor. The M&E designers (Steensen Varming Mulcahy) were not insured under the policy (although they presumably carry their own professional indemnity insurance). No doubt bruised by having to pay out so much money, the project insurers were anxious to recover something wherever they could. It was they who instigated the action in the British Library case, using their rights of subrogation under the insurance policy to sue in the name of the government client.

SVM were alleged to have breached their obligations to the government client in several respects. They had failed in their design (because it lacked "buildability" and the execution of it could not easily be supervised), they had failed to review their design when problems arose and they had failed in their duties to supervise the execution of the works. The Court found for SVM on all counts and the action failed. Somewhat unusually, SVM were apparently awarded their costs on an indemnity basis for certain aspects of the case, which may indicate an overall lack of sympathy on the part of the judge for the case of the plaintiff insurers.

In the midst of all this there is some interesting law. One aspect revolves around this much used word "supervise". Most design consultants will tell you that they are not responsible for supervising the works. The RIBA architect's appointment does not go any further than saying that the architect will "at intervals appropriate to the stage of construction visit the Works to inspect the progress and quality of the Works and to determine that they are being executed generally in accordance with the Contract Documents". For engineers, the ACE appointment requires the engineer to make "periodic visits to the site as appropriate to the stage of construction to monitor that the Works are being executed generally in accordance with the contract documents and with good engineering practice". Such woolly wording was no doubt prepared with previous case law in mind. Time after time architects have been held liable for failing to identify deficient workmanship and materials during the course of building works.

SVM were not so lucky as to have the ACE wording. The obligation in their appointment was to "make site visits of inspection to ensure that the works are being properly supervised and executed in accordance with the design and specifications and otherwise to safeguard good engineering practice".

As a starting point, this is not too encouraging for the consultant. The obligation is "to ensure that" and that naughty word "supervised" appears. However, SVM were found not to have breached their obligation and this is how:

  • The judge found that making site visits to ensure that the works were executed in accordance with the specification did not amount to SVM being required to guarantee the workmanship of the M&E contractor.
  • As a matter of fact, SVM had warned about the workmanship problems (and at the time, the government client had sided entirely with SVM against the M&E contractor).
  • The workmanship problem arose right at the workface where, it was found, SVM could not be expected to supervise in the way that a site foreman engaged by the M&E contractor probably should.
  • The construction manager itself had obligations to supervise and co-ordinate and SVM's obligations were read in the context of this.
  • SVM's appointment provided that the government client could require SVM to appoint "site supervision staff". The client never exercised this power.

None of this means that architects and other designers are off the hook. They should still consider very carefully the wording of their obligation to inspect, monitor or supervise works. However, it seems that generally they will not be required to guarantee workmanship and materials, which must as a matter of common sense remain the primary responsibility of the contractor.

In the British Library case, the M&E contractor was joined as a third party and no doubt SVM would have sought contribution from it in the event that SVM had been found liable. In the circumstances, it seems that the level of contribution would have been high (could it even be 100%?). Bearing in mind that the contractor was one of the insured parties doesn't this suggest that in bringing the action at all the insurers were wasting everybody's time and money?

The practical lesson for design consultants - do whatever you can to get yourself named as an insured under the project policy. It seems that in the British Library case this would have put SVM in the same (protected) position as the M&E contractor.

[1] Department of National Heritage v. Steensen Varming Mulcahy (1998)

This article was first published in Marcfarlanes' Construction Press March 1999 issue.

Macfarlanes' Construction Press is intended to provide general information about developments which may be of interest. It is not intended to be comprehensive nor to provide any specific legal advice and should not be acted or relied upon as doing so. Professional advice appropriate to the specific situation should always be obtained.

If you would like further information or specific advice, please contact Tony Blackler.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.