Vitsoe Limited v Waugh Thistleton Architects Limited

In a professional negligence claim arising from construction defects, an architect’s contractual scope of duty depends primarily on the appointment, read with the responsibilities allocated to other project participants. An architect responsible for design and design co-ordination is not thereby responsible for programming, site management or protection of trade works where those matters are allocated to a construction manager or specialist contractors.

A moisture content control plan is not required where the architect’s specifications provide suitable moisture-control information and no professional obligation to prepare a separate plan is established. Close sequencing may be a reasonable alternative to a temporary roof. Damages must be reasonable in type and extent, and unringfenced borrowing costs are not recoverable as specific funding losses.

Vitsoe Limited engaged Waugh Thistleton Architects Limited to provide architectural services for a timber-framed headquarters and distribution facility. The roof incorporated laminated veneer timber and cross-laminated timber panels. After exposure to rainfall during construction, the panels suffered rot and decay, requiring extensive remedial works.

Vitsoe alleged breaches of the contractual duty to use reasonable skill and care, including failure to prepare a moisture content control plan, failure to identify inadequate tender protection, failure to respond appropriately to wet conditions, and reliance on an erroneous belief that the timber would dry internally. It also claimed substantial remedial costs, professional fees and financing costs.

The central issues were the scope of the architect’s contractual duty, whether the alleged acts or omissions constituted breach, and the recoverability and amount of the claimed losses.

1. Scope of duty. The contractual appointment was the starting point. It had to be considered alongside the contracts of the construction manager, timber frame contractor and roofing contractor. The architect’s duties principally concerned design and design co-ordination. Responsibility for programming, site management and protection of trade works rested with the relevant construction manager and trade contractors.
2. Moisture planning and temporary protection. There was no mandatory requirement in 2016 or 2017 for the defendant to prepare a separate moisture content control plan or risk assessment. Its timber frame and combined specifications supplied suitable and robust moisture-control information. The building was not exceptional and did not require a temporary roof. Close sequencing between installation of the timber panels and roof covering was a legitimate and appropriate method of construction.
3. Christmas 2016 response. The defendant was not negligent in failing to prevent installation of the vapour control layer in wet conditions because the relevant participants already knew that wet installation was inappropriate. It had raised appropriate questions about moisture testing, sought further testing after the Christmas shutdown, and reasonably relied on the responsibilities of Hess and JCA. The defendant had also raised the possibility of a temporary canopy at the January 2017 meeting.
4. Quantum. Applying the approach in AXA Insurance UK Plc v Cunningham Lindsey UK and Brit Inns Ltd v BDW Trading Ltd, the touchstone was reasonableness, rather than the costs actually incurred as an automatic starting point. The claimant’s remedial costs and professional fees would have been recoverable if liability had been established. The defendant failed to establish the proposed further deductions. Unringfenced borrowing costs could not be isolated as costs of funding the remedial works; statutory interest at 3.5% above base would have been appropriate.
5. The claims were dismissed. The parties were invited to agree the appropriate consequential orders.

Not stated in the judgment. This was a first-instance decision of the High Court (Technology and Construction Court).