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Design Defects

Client: Joint appointment on behalf of ICC Arbitral Tribunal
Situation: A member of Probyn Miers was appointed as the ICC Arbitral Tribunal Expert Architect for the purpose of investigating and reporting on an extensive schedule of more than 700 defects in this international hotel in Kiev, Ukraine. The hotel was required to be designed and built to meet a combination of European and International standards including Russian, Ukrainian and German standards
Action: During the course of several site visits we met with the parties and agreed a systematic process of research, investigation and opening up where required, leading to substantial agreement on many items. This included investigations in to the acoustic performance of internal walls, roofing and rain water drainage, external walling and render.
Result: The hearing took place and an Award was published.

 

Client: Architect/PI insurer
Situation: Following flooding, a homeowner claimed that the design of his house was fundamentally flawed, due to errors by the architect, and that the house would have to be rebuilt. Probyn Miers  was required to analyse the testing and research work carried out by the architect in the course of the design.
Action: Probyn Miers provided advice on the architect’s performance of his duties in relation to site investigations and testing.
Result: The claim was settled at pre-action stage.

 

Client: Design and build contractor
Situation: The contractor was faced with allegations of widespread and severe defects in the construction of a large hotel as the results of defective design and/or poor workmanship.  PM was appointed to examine the design provided as part of the Employer’s Requirements, and the design as built, and comment on the likely cause and the severity of the defects observed.
Action: Probyn Miers provided a report on issues of design and workmanship, and gave evidence in the ensuing arbitration.
Result: The arbitrator’s award was in favour of contractor.

 

Client: Homeowners
Situation: Conversion and extension of an existing building to form a new dwelling was halted when it was discovered that the works could not be constructed in accordance with the Planning Permission design.  Probyn Miers opinion was required in response to an expert report produced on behalf of the architect responsible for the design.
Action: Probyn Miers produced a report for litigation.
Result: The dispute is ongoing.

 

Client: Solicitors for the Parochial Church Council
Situation: A timber platform was erected on the church’s wood block floor.  After completion, the platform’s timber surface started to deform, and eventually had to be removed.  The cause was identified as a high level of moisture inside the platform, which was then entirely removed.  The moisture had caused damage and rotting to the underlying wood block floor.  The Parochial Church Council sought advice concerning how the defect might have arisen and whether any party might be held liable for the costs of repairing the floor and replacing the platform.
Action: Probyn Miers examined the relevant documents and drawings, visited the site and took measurements of damp, temperature and humidity.  In common with older buildings generally the church and its floor were not of damp-proof construction and relied on natural evaporation from interior surfaces to moderate dampness.
Result: Probyn Miers identified the most probable and predominant cause of the excessive moisture as being the suppression of evaporation from the floor by the overlying platform structure, the interior of which was inadequately ventilated.

 

Client: Solicitors for the building owner
Situation: Completion of the £15M new building required a variety of additions and modifications which substantially increased the contract sum.  The building owner wished to ascertain the degree to which the architect as lead consultant and contract administrator might be held responsible or liable for these increases.  Twenty representative individual issues were selected for a preliminary analysis.
Action: Probyn Miers visited the site, examined documents and drawings relevant to the selected issues, and produced a report.  The architect’s professional handling of the project was found to be deficient in some respects, but several other factors such as QS mis-measurement and the consequences of client-directed variations were also found to have contributed to the cost overrun.
Result: Probyn Miers report assisted the building owner and its advisers to assess the performance of the architect.

 

Client: Owner of Residential Care Home
Situation: The Residential Care Home owner had commissioned architects to redesign, extend and upgrade her existing care home. The architects prepared a design and administered the construction contract through to completion. On completion the local authorities refused to register many of the rooms due to their poor and inadequate size. Probyn Miers was commissioned to investigate the situation and to consider the performance of the architects.
Action: We reviewed the design and found that a number of rooms were indeed: undersized. We prepared an alternative design which could have been produced at the time, and which would have provided the same accommodation at no significant cost and with no undersized rooms.
Result: The dispute was not settled and went to trial resulting in a substantial award of damages for our client.

 

Client: Insurers for international award winning architects
Situation: After winning an international design competition and developing the design through to the building being partly constructed, these international award winning architects were removed from the project by the client. The architects considered they had a substantial fee claim for variations and other fees outstanding.  The employer submitted a counterclaim in relation to various other matters on the project concerning access, integration of M&E services, and fulfilment of the design brief
Action: Probyn Miers analysed the RIBA Work Stage completion of the various stages of the project in relation to architect’s information: and the architect’s fee claim.  We also analysed critical areas of alleged defective design and/-or worksmanship.
Result: The matter settled following a mediation.

 

Client: Solicitors for architect and PI insurers
Situation: The property was extended including construction of a deep basement with the basement accessed via specialist lift.  The client was unhappy with the operation of the lift.  Remedial works were not successful and the lift was replaced.  The client brought proceedings against the architect as the consultant involved in dealing with the specialist lift manufacturer.
Action: Probyn Miers was appointed to give expert opinion on the architect’s liability when a specialist subcontractor is appointed with responsibility for design as well as manufacture and installation.  This was at the time of the judgement in Cooperative Group Limited v John Allen Associates Limited [2010], dealing with this issue.  Probyn Miers’ view was that the architect had a duty to advise about procurement and was vulnerable unless there was a direct contractual relationship between the client and the specialist.
Result: The matter was settled at mediation.

 

Client: Solicitors for building owner/occupier
Situation: A new car dealership had been built, with the workshop at first floor due to site constraints.  The workshop floor was tiled as required by the car manufacturer.  Soon after occupation tiles started delaminating from the pre-stressed concrete floor units on which they had been laid.  The car dealership claimed against the architect for the cost of replacing the tiles, alleging failures in the performance of its design and inspection duties.
Action: Probyn Miers was appointed to give expert opinion on the cause of the tiling defects and on the architect’s design and inspection liability.  This raised issues of differential movement between the tiling and the supporting suspended structure, both short-term reversible movement due to temperature cycles and long-term irreversible movement due to shrinkage of the concrete.  These had not been considered adequately, perhaps because the workshop was normally at ground level with a ground-bearing slab which would experience much less movement.  Probyn Miers prepared a report which was exchanged with the other side.
Result: The case settled at mediation.

 

 

Client: A Local Authority
Situation: The school, which was built to replace an ageing and outdated secondary school was being offered for PC by the contractor but the Client was reluctant to accept certification on the grounds that much work remained to be done and that a number of leaks were apparent.
Action: Probyn Miers visited the building with the client and reviewed a number of areas of concern. In a preliminary report Probyn Miers identified a number of potential problems with the roof construction, health and safety issues with regard to fire doors and balustrades and various issues related to unfinished work and poor standards of finish.
Result: The contractor responded to the Probyn Miers report constructively and positively. He involved Bauder Roofing (the manufacturer of the specified proprietary roofing system) in addressing and resolving the issues with the roof. He installed new fire doors, having established that the doors installed were too small. He completed the outstanding items of work and improved the quality of the finishes in the critical areas that the Probyn Miers report identified.The contractor documented the extent of all this remedial work and this record was included in the O&M manuals for the project.


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