Lessons for architects from across the Irish Sea

The recent Irish High Court case of Ashdrum Lodge Limited v Barbouti [2025] IEHC 522 features a number of issues which occur commonly in architects' negligence claims in this jurisdiction: a difficult client, an oral contract, mission creep, allegations that inspection should have identified latent defects, and an allegedly incorrect mix of mortar.

Background

The setting for this dispute is Georgian mansion Derrybrawn House, set in almost 100 acres of parkland and forest south of Dublin. The property was built in about 1750 but extensively remodelled in the mid-1880s in the style of an Italian country villa, described as "epitomising the folly and excesses of the first decade of the 21st century in Ireland". The dispute concerns further remodelling of the property which took place between 2013 and 2017 at a cost of more than €5m.

The homeowner's (B's) management of the construction work was "unconventional… erratic and unpredictable". B had a strong vision and was "very hands on", sometimes instructing subcontractors directly. The initial scope of the works was to repair water damage to the house, but this quickly expanded to extensive remodelling and works on the grounds, including the 15 new and historic walls, which extended to 1km in/around the property's orchard. Five years into the extensive project, B became concerned about costs and locked the contractor out of the site without notice, firing the architect (D) shortly after. This took place before practical completion to the works outside the house, but B ignored D's suggestion to appoint a quantities surveyor to ascertain the total sums due to the contractor; instead appointing forensic accountants – something criticised by the judge as unreasonable and unsuitable.  

The claim

The litigation originated as a fees claim by the contractor for €1.4m, which was met with a counterclaim by B for €1.3m, alleging that she had been overcharged and seeking compensation for alleged defects. She also joined D, arguing that he had negligently and in breach of contract failed to advise her and to properly supervise the works; meaning that he allegedly failed to identify the contractor's allegedly defective mix of bedding mortar in the walls: something that B alleged was a latent defect. This was the main issue in the 28-day trial after B's dispute with the contractor settled on the 4th day of trial and D made concessions about a design issue and defective haunching of the historic walls.

In a lengthy judgment, Mrs Justice Stack resolved a number of granular issues, but those of most interest to England & Wales architects are the analysis of:

1. The scope of the oral contract;
2. An architect's duty to supervise and inspect the works;
3. Whether the incorrectly mixed mortar was a latent defect; and
4. Contribution and contributory negligence.

The terms of the contract

At the outset of the matter, D had proposed the use of The Royal Institute of the Architects of Ireland's standard form blue contract, to be used in private sector contracts "where Quantities do not form part of the Contract – Lump Sum". In this jurisdiction, an equivalent might be the JCT Standard Building Contract Without Quantities (SBC/XQ or SBC-XQ).

However, B did not respond to D's suggestion that the parties use the "blue" form of contract, and the judge concluded from her evidence that this was a deliberate choice because she preferred the flexibility of having "no contract" and intended that the works would expand to reflect her wishes from time to time. This also meant that D could not produce drawings, specifications or a schedule of rates; nor could D seek tenders for the works. Despite B's approach, the parties clearly had some form of contract, albeit it mainly oral, and the judge concluded that large parts of the blue form were incorporated by course of dealing. Further, D was not negligent in failing to advise B that barring the contractor from the site would be a breach of contract. Not only should this have been obvious to B, but she had concealed her plans from D, preventing him from so advising.

The lack of clear contractual documentation complicated the analysis of the scope of D's duty of care, with the court commenting that "the duty of care which an architect undertakes is related to and determined by the scope and terms of [their] engagement". This is also the case in England and Wales and a clear scope of work is arguably even more important following the Supreme Court's decision in Manchester Building Society v Grant Thornton UK LLP [2019] EWCA Civ 40, which requires the risks against which the professional has been instructed to guard the client against to be identified.

What does the duty to inspect require?

The court considered that D's duties were the standard architect's services set out in the blue form contract, which required him to "exercise reasonable skill and care on the project in accordance with the normal standards of the architect's profession…". In relation to inspection, the blue form contract stated:

"During Work Stage 8 the architect will visit the site at intervals s/he considers appropriate to the stage of construction to inspect the progress and quality of the work and to determine that the work is being carried out generally in accordance with the contract documents. Frequent or constant inspection does not form part of the standard service at [A]. It is the contractor’s responsibility to supervise the building work."

Accordingly, and in line with HHJ Coulson QC's comments in McGlinn v Waltham Contractors Ltd [2007] EWHC 149 (TCC), D was not obliged to supervise the works. Supervision was the responsibility of the contractor.  Rather, D's obligation was to carry out periodic visual inspections, prioritising the most important issues, focussing on the work being carried out on site at the time, and intervening to require any identified defects be remedied. Visual inspection did not involve poking and prodding between the stones with a chisel or fingers, spraying the mortar with water or using a microscope. When inspecting the works, they would only need to be opened up if the visual inspection gave rise to concern; and if a defect were identified, the architect's duty was to intervene to require correction by the contractor. In particular, the judge commented at para 3.193:

"I think it is clear from the authorities, and also from the evidence of Mr. O’Connell, that the duty to conduct periodic inspections, particularly prior to the period of final measurement, is not one that requires an architect to inspect each piece of work on each visit. The architect is entitled to prioritise, perhaps, for example, focussing on urgent issues which have arisen or works which are less standard than the construction of a wall – where the expert evidence was that one would not normally expect a contractor could be trusted to mix the mortar correctly."

The court reiterated the important distinction that workmanship (including the mixing of mortar) is the responsibility of the contractor, not the architect. On the facts, B had not proven that the defective mix would have been visible in 2017. B's expert had not inspected the walls until 7 months after B had dismissed the contractor and D and the mortar had not become a key issue in the case until 2022. Since the mortar had been left open to the elements in that period, B's experts could not say for certain how the walls would have appeared to D during the course of his last inspection in August 2017. The court rejected B's materials scientist's opinion that globules of binder would have been obvious, preferring the evidence of D's expert architect that the mortar would quickly take on an opaque appearance (laitance), disguising any globules. Mortar was different to concrete as a new mix would be prepared every day (sometimes more than once a day), so even if D had identified a problem with the mix, that would not have put him on inquiry of a pervasive issue. As architects cannot and need not be continuously present on site, it was inevitable that D would not be able to check every mix.

One of the issues that the court took into account when deciding which expert's evidence should be given which weight was the discipline of the expert, highlighting that choosing the right expert is key. In this case, D's expert was an expert architect, and better able to guide the court on how D should have acted; whereas the materials scientist called by B admitted never having been on site or seen mortar being mixed or applied in practice. The latter's failure to make reasonable concessions led the judge to suspect that he was taking an unreasonably partisan approach despite his undoubted expertise – a warning to parties and experts to make concessions where it is sensible to do so. The judge also gave D's own evidence with "considerable weight", finding that he was a "wholly credible witness".

Another factor that weighed in the judge's decision that the defects in the mortar would not have been discoverable from a visual inspection in 2017 were the thousand of photographs taken by D during the course of his inspections. While most of these were not close-ups of the wall, only one of them showed a problem with the mortar, and this was towards the end of the project. However, the judge concluded that this was a defect that D would have sought to remedy, had he been allowed to see the project to fruition.

Contribution

The court also determined whether B had to give credit for the amount of her settlement with the contractor under the Irish Civil Justice Act 1961. Following the settlement, it appears that under ROI law, B stepped into the shoes of the contractor for the purpose of apportioning liability as between the contractor and D. As under English law, the court had to judge the relative blameworthiness of the parties, finding D fully liable for design issues with the warehouse (which had been conceded), and 50% liable for the admitted haunching to the walls. On the critical issue regarding the defective mortar, D would only have been 10% liable had the court found that he acted in breach.

Perhaps the most striking finding was the judge's finding that B was entirely the author of her own misfortune ("that timeless phrase included in countless defences") and was 100% contributorily negligence due to her summary dismissal (in breach of contract) of the contractor and D, depriving D of the opportunity to identify the defective mortar. Under English law, this act could also have been argued as a break in the chain of causation. In any event, no liability rested with D at all for the defective mortar.

Key takeaways

Whilst this case was decided in Ireland, and is not therefore binding on the Courts of England and Wales, this case does provide good lessons that can be taken forward by architects in their professional practice:

1. Get it in writing: Ensure that a suitable contract is proposed at the outset and ensure that this is done in writing. In this case, although the contract was not written, there was written evidence (in the form of an email written by D) of D's proposal to use the blue form. As such, even in cases where your client does not sign a written contract despite your request, make sure that you set out the terms that you consider apply in writing.
2. Keep your client up-to-date on costs: Ensure that you advise clients of your charges periodically. In this case, although D advised of the basis for his charges (presumably an hourly rate) at the outset, it appears that he did not advise B about his fees regularly, until submitting an invoice for €222,685.87 some 5 months after his dismissal. The judge found that B had no claim in respect of D's alleged failure to advise her of the level of his fees because she had not paid them, so had suffered no loss. But to avoid this situation and, as part of good financial hygiene to ensure cashflow, submit regular invoices or, at the very least, ensure that you update your client in writing on how much WIP you have incurred periodically (monthly, quarterly, whatever makes the most sense for the project).
3. Make a record: Document your inspections by taking photographs. In this case, of the thousand or so photographs taken by D, only one suggested a problem with the mortar and the judge found that this would not have led him to suspect a pervasive problem.
4. Consider concessions: Discuss with your legal team making reasonable and timely concessions. It is not yet clear how much the parties incurred in the dispute, but with at least 5 experts and a 28-day trial, this was not a cheap dispute. Aside from the costs, B's expert's failure to make reasonable concessions meant that the judge gave his evidence less weight. It is important to ensure that you consult specialist lawyers before making any concessions as a failure to act with skill and care can have regulatory consequences, as explained in our article here.
5. Find the right expert: Discuss with your legal team the right experts to instruct. Although B's materials scientist had substantial expertise, his lack of practical experience led to the judge preferring the evidence of D's expert architect.

If you have any queries arising out of this article, our expert construction lawyers would be delighted to answer any questions or hear your comments.