BIM and Construction Contracts

November 5th, 2019

by Frank Newbery

A brief summary and comparison of the provisions made for Building Information Modelling in the latest versions of JCT, NEC and FIDIC construction contracts.


If suitably applied, BIM technologies and procedures can provide construction projects with a greater degree of coordination, transparency and control than otherwise achievable, thereby pre-empting many of the difficulties that commonly arise; such as unforeseen spatial or logistical clashes, misunderstood material or task requirements, overlaps or gaps in participants’ obligations, and deficient or misleading records for future reference.

Implementation of BIM can be expected to incur higher initial project costs, but can then potentially provide greater certainty, clarity and economy during construction and subsequent operation.  BIM-structured project information also lends itself to re-adoption and evolution through future projects.  This may be especially useful and economical where standard types of accommodation must be reproduced or improved in series of similar projects such as government institutional buildings.  BIM implementation is now indeed a standing requirement for state-funded building projects.

The nature of any specific form of BIM implementation and the obligations that it imposes on a project’s participants must be clearly defined as early as possible during the procurement process.  Also it is increasingly recognised that BIM implementation, if required, must be explicitly addressed within the broader framework of a project’s main construction contract.

Because of the high degree to which information is coordinated and integrated within BIM, project participants may need to adopt more collaborative and co-dependent working relations than they might otherwise.  This may potentially increase the risk and complexity of disputes concerning the scope and demarcation of required work, intellectual property and liability for defective design features.

Already there exist some key resource documents that can potentially be annexed to or cited by any type of construction contract for the purpose of establishing and regulating BIM implementation.  In particular, the CIC’s BIM Protocol [1] may be used to define a project’s BIM standards, procedures and responsibilities.  The Protocol states that it is closely aligned with PAS 1192-2, Specification for information management for the capital/delivery phase of construction projects using building information modelling.  PAS 1192-2 can still be obtained, but has now been superseded by the international standard ISO 19650 [2].  Compliance with this standard requires an “information protocol” to be included in all project appointment terms, together with a range of essential supporting documents.

Such “bolt-on” protocols etc must be carefully integrated with the contract clauses and with other contract annexes such as the Preliminaries Specification, otherwise it is likely that inconsistencies, ungoverned gaps or conflicting simultaneous requirements will emerge.

In the following three sections I outline how BIM implementation is treated in the latest editions of three different and commonly employed standard forms of construction contract, and by relevant supporting guidance published with them.

JCT Contracts

The Joint Contracts Tribunal produces a wide range of standard construction contracts.  Suitable forms can be found for construction projects varying considerably in scale and procurement structure.  JCT contracts are conceived and evolved with the benefit of continuous and inclusive industry-wide consultation. In the UK they have become familiar over the course of many decades, and their use is widespread.

In May 2019 JCT published a 26-page Practice Note: BIM and JCT Contracts, which serves as a supplement to JCT’s 2016 Practice Note: Building Information Modelling (BIM), Collaborative and Integrated Team Working.  The earlier Practice Note is still useful as a broad introduction.  The later one is more specific and, in its Part A, provides a clause-by-clause commentary on how BIM provisions should be implemented or considered in connection with JCT’s 2016 Design and Build Contract (“DB 2016”).  JCT has identified this form of contract as the most popular of its range for use in BIM projects.  JCT suggests however that its comments may be relevant to similar clauses in its other forms of contract – but with an overall caveat that “This commentary is not a substitute for professional advice and is not intended to be prescriptive or definitive” (footnote [8]).

Part B of BIM and JCT Contracts is a “BIM Protocol Checklist”, setting out items and considerations that the Protocol must cover, especially the apportionment of responsibilities and risks among different members of the project team.  The Checklist appears largely to mirror the content of the above-mentioned CIC BIM Protocol, which JCT cites as “instructive” (footnote [6]) – but which it does not exclusively prescribe.  Positive reference is also made to the ISO 19650 standard, which is linked to the CIC BIM Protocol as I have noted above.

The first of three concluding appendices is a “Checklist of common contents of Exchange Information Requirements”.  This is a series of questions under the headings “Information”, “Management”, “Technical” and “Commercial”, for which no specific answers are recommended.  This checklist is caveated as “a general outline” and “not legal advice” in a footnote.  Appendix 2 is a glossary of some key BIM terms.  Appendix 3 simply reproduces the original DB 2016 clauses and schedules to which the Part A comments apply.  Finally there is a short but useful Bibliography.

The NEC4 Contract

NEC contracts [3] have been developed since the early 1990s under the guidance of the Institute of Civil Engineers.  The latest version, NEC4, was published in 2017.  The NEC type of contract is generally perceived as being less “traditional” than JCT, plainer in its language, more suitable for non-UK projects, more conducive to collaborative working and generally more flexible (but requiring more attention to detail in its annexed “Contract Data” than JCT Employer’s Requirements).

NEC4 has been endorsed by the UK government as its prefered form of contract for public sector construction projects.  This is consistent with the Government Construction Strategy that also promotes the use of BIM.

NEC’s published guidance for NEC3 had explicitly recommended use and adaptation of the CIC BIM Protocol for the purpose of BIM implementation.  Now, with international adaptability in view, NEC4 no longer specifically cites the CIC BIM Protocol (although there is nothing that would inhibit its use, and it would probably remain among the first-considered options for UK-based projects).

NEC4 can be adapted for BIM using one of its “Secondary Option Clauses”, i.e.“Option X10: Information Modelling”.  The clause itself occupies about 1½ pages, but its text defines and refers to substantial information packages that must be prepared and annexed.  These are: an “Information Model”, with “Information Model Requirements”, and an “Information Execution Plan”  which conforms to those requirements.

This Information Execution Plan would be equivalent in scope and status to a BIM Execution Plan as defined in the CIC BIM Protocol, i.e. an explanation of how the information modelling aspects of the project will be carried out.  If not already specified in the Client’s Contract Data, the Contractor is expected to submit a proposed Information Execution Plan for approval by the Project Manager.

Further sub-clauses of NEC4’s X10 establish the parties’ rights and liabilities in respect of the information modelling process and contents.  The Client is deemed to own the Information Model except as stated otherwise in the Information Model Requirements.

FIDIC Contracts

Of the alternative forms discussed here, FIDIC [4] construction contracts are best known and most used for major construction projects situated in the developing world outside Europe and North America.  They are seldom used for projects within the UK.  The core versions of the FIDIC “rainbow” suite of contracts, last revised in 2017, are the “Red Book” for employer-designed projects, the “Yellow Book” for contractor-designed projects, and the “Silver Book” for EPC [5] / “turnkey” projects.  Other FIDIC forms and publications cater to further variants in project procurement structure and context.

FIDIC contracts must function simply and robustly in a great diversity of project situations, and might therefore not be expected to benefit greatly from incorporating fixed and uniform BIM implementation requirements.  Nonetheless, BIM in some form is often required or advantageous for particular projects, and FIDIC’s publishers have given this due consideration.

The 2017 FIDIC contract editions now include “Advisory Notes to Users of FIDIC Contracts Where the Project is to Include Building Information Modelling Systems”.  This occupies three pages and consists mostly of general explanation and advice concerning BIM.  It contains no specific additions or modifications to the contract text, but includes a “non-exhaustive” list of 25 numbered sub-clauses that “should be thoroughly reviewed” if BIM is to be implemented.  There is no equivalent to NEC4’s relatively specific X10 clauses, nor any mention of the CIC BIM Protocol or its associated procedural standards.

The Advisory Notes’ last paragraph states FIDIC’s intention to publish a “Technology Guideline” and a “Definition of Scope Guideline Specific to BIM”.  At the time of writing these have not yet appeared.

Comparative Summary

Of the three forms of contract discussed above, NEC4 together with its secondary clause X10 appears to offer the most direct and specific integration between contract provisions and BIM implementation.  Given the UK government’s endorsement of the NEC4 contract along with BIM generally, it is probable that a range of more detailed norms and adjuncts will evolve from this nucleus and acquire general currency (at least within the UK).

Although it does not specifically modify or add any actual contract clauses, JCT’s advisory approach is usefully detailed and beneficially informed by awareness of the CIC BIM Protocol and its associated evolving standards for information management procedure.  This may in due course lead to practical development of more standardised and specific BIM adaptations by regular users of the JCT contract form.

By comparison with the above, the FIDIC contracts prescribe no specific clause modifications in respect of BIM, and offer the least specific general advice.  This “broad brush” approach is perhaps a reasonable reflection of the form’s valued global portability and robustness in greatly varying circumstances.  Insofar as BIM procedures become globally more standardised and routine, then the FIDIC forms might then usefully be equipped with some more specific BIM provisions.

[1] Building Information Modelling (BIM) Protocol, 2nd edition 2018, published by the Construction Industry Council.  Free download available at

[2] BS EN ISO 19650-1:2018 and -2:2018, Organization and digitization of information about buildings and civil engineering works, including building information modelling (BIM). Information management using building information modelling. Part 1: Concepts and principles and Part 2: Delivery phase of the assets.  Published by the British Standards Institution.

[3] NEC: “New Engineering Contract”.  The NEC4 document is subtitled “Engineering and Construction Contract”.

[4] FIDIC: Federation Internationale des Ingenieurs-Conseils, i.e. International Federation of Consulting Engineers.

[5] EPC: Engineering, procurement and construction.


BIM: a collaborative approach to risk management & mitigation?

November 5th, 2019

By David King

Synopsis of a BIM4Legal presentation at Norton Rose Fulbright LLP, London office.

By now most people are familiar with what we refer to as BIM maturity level 2 – where a digital project information model is created from consultant models, produced by a range of different designers, contributors or manufacturers; creating a federated model. Here clash detection is often easier than clash avoidance, because individual teams are working separately and don’t actually know if their bit of the jigsaw really fits until they plug it in.

In principle moving to level 3 will enable all designers to work together on the same central model, but practitioners are not currently operating at this level – and there often appears to be a lack of clarity and/or understanding in many of the conversations around the subject.

Initially the developments in Information Modelling were led by the design team – because of the advantages it offered in coordination, clash detection and visualisation. In 2007, in pursuit of brevity, I described the process as design development using;

“Virtual modelling in a collaborative environment with computable interoperable data”

However, it soon became apparent that the process was not limited to design, and I don’t think designers realised quite how significant the “collaboration” part would prove to be. Perhaps that’s because as designers we are used to the idea of collaborating – it’s what we do all the time; design teams couldn’t function without it. But information modelling is about more than simply 3D modelling – we now talk in terms of 4D (for sequencing), 5D (for cost analysis) and 6D (for operations management). Which is not to underestimate the role of innovations in technology – where the question is “what more can we do?”

There have been many developments in parametric modelling – so that, for example, a stadium designer may write an algorithm to look at how seating options will impact the revenue stream; and write programmes to test how orientation impacts energy use Also, future developments in AI will clearly lead to big changes – not least in dispute resolution.

In October 2018 a report from the Construction Industry Training Board talked of “unlocking construction’s digital future” and warned that the construction industry risks being marginalised and losing a generation of new talent, unless it starts to adopt innovative technology on a large scale; this is required reading. See:

But again, it’s not just about technology. 3D modelling will of course continue to be an invaluable design tool as some projects are just too complex to coordinate without it. In addition, the launch of the Centre for Digital Built Britain’s National Digital Twin programme by the UK Treasury in July 2018, should encourage the expansion of opportunities for digital inter-connectivity to accelerate. See:

It seems to me, however, that there is also an opportunity for designers to regain some of the ground lost to other consultants over recent years. And this brings me to the issue of risk management and mitigation. It has always been a central premise of risk management that risks should be owned by those best placed to manage them, but despite this, it is my experience that those in the construction industry who create the risk often look to offload it on to somebody else; as, for example, seems to have been the case in SSE Generation v Hochtief Solutions (2018) CSIH 26

If we are already sharing data, why not also share the risks … and the rewards; which is where Integrated Project Delivery comes in. Perhaps the only impediment is one of attitude – largely because UK construction industry procurement is, in mirroring much of our legal practice, built on the adversarial model.

Integrated Project Delivery or IPD challenges this model – and it seems that government is once again setting the agenda. The announcement almost a year ago by Highways England of a “Smart Motorways” programme could yet presage what is to come – in this case a 10 year “Alliance” that might yet provide a model for future building procurement. See:

Let us not forget, also, that one aspect of alliancing in its typical form is limited access to dispute resolution. But this begs a number of questions:

  • Where government leads will others follow – are government initiatives enough to effect a cultural change?
  • Can infrastructure procurement models translate into building procurement?
  • Can traditional UK construction contracts actually be an obstacle to innovation?

Jerome Stubler (chairman of Vinci Construction) speaking at a recent Future of Construction Summit offered the following observation;

“The risk averse nature of UK procurement keeps costs artificially high – a power station the size of Hinckley Point is currently being built in France for less than half the cost ….”

So, what makes IPD different? Well, at its heart is the concept of shared information, together with shared risk and shared reward. Here collaboration is the key to digital transformation. True collaboration requires that parties develop confidence in each other, in their ability to deliver the project, and in their ability to respect the interests of all parties to the project, thus creating a relationship where decisions are made based on what is best for the project, rather than what is best for any individual team member.

What are the challenges for the legal team? I believe these remain much as before – the protection of authorship, intellectual property, and sometimes copyright … but in a new context; and of course, there’s potential for a much more fluid context outside of the EU. Could dispute avoidance reduce the need for dispute resolution, and can the legal team play an active part in such a transformation?

We’ve been talking about collaboration in the UK for a long time now, certainly since the Latham Report of 1994; the Egan Report in 1998; and the Government Construction Strategy launched in 2011. But to the extent that construction procurement remains a largely adversarial affair, the challenge of cultural change remains. IPD, grounded in BIM, offers an opportunity to facilitate that change, providing an environment where design teams can maximise their value, rather than just selling their time – and where the benefits of increased productivity are shared.

Of course, this requires first and foremost enlightened clients who are willing to contemplate sharing the reward they look to generate – clients who are willing to see the design team as partners rather than a service. And enlightened clients will surely look to enlightened design teams, advisers and lawyers … are we all ready to play our part?


Perspective Summer 2019

June 27th, 2019

Probyn Miers welcomes you to our Summer 2019 edition of ‘Perspective’ which brings you news, information and points of view on topical issues relevant to construction lawyers, architects, contractors, engineers, insurers and to all our colleagues and friends in the international and UK Construction Industry.

Architects Keeping Good Records
By Michael Ogus

A recent case in the Technology and Construction Court (TCC): Freeborn v Marcal [2019] EWHC 454 (TCC), highlights the importance to all architects of good record keeping, providing a written brief and ensuring that any changes to the brief are clearly explained to the client……  Read More

RIBA New Code of Conduct 2019
By Katerina Hoey

The Royal Institute of British Architects (RIBA) published an updated Code of Professional Conduct on 8 April 2019, (“the RIBA Code”). This came into force on 1 May 2019 alongside new procedures for dealing with disciplinary issues….. Read More

Updates & News

Balcony Scene

On 24 June 2019, MHCLG issued its “Advice Note on Balconies on Residential Buildings”.  In this note MHCLG advised that “the building regulations required that the material and construction of balconies should have been such that balconies should not compromise resident safety by providing a means of external fire spread, even before the introduction of the ban on combustible materials in December 2018”, and that “these provisions apply to buildings regardless of height”.  Before 2018, the Approved Documents provided little clear guidance on fire safety of external balconies, and the change in regulations and guidance is welcome.

New Publication

‘Construction Law in the International Environment ’

Editor & Lead Author: Fernando Marcondes – L.O.Baptista- Sao Paulo 

Editorial: Almedina- Brazil

Preface by Christopher Miers – an extract: 

“This book brings together key elements of international construction law and best practice which represent recurrent themes in the successful delivery of international construction projects. The timing of the publication of the book is important as we see the continued expansion of international construction law as a niche specialist area of legal practice, and we engage with project participants from worldwide cultures…’ Hence, I envisage that this book, expertly conceived of and brought together by the leading, distinguished construction lawyer Fernando Marcondes, with its range of topics and its expert authors, will be much referred to and often cited’. Click here to read the Preface

Introduction by Fernando Marcondes- an extract:

“The proposition of reuniting tendencies and practices of contracting parties in the international environment of the Construction sector was made in 1997 [1], in a brilliant article which considered that due to the increasing infrastructure projects developed internationally, it would be necessary to go beyond laws and custom and usage. The adoption of international contract models and the practice developed during the execution of these projects had already created, at that stage, a collection of references that could not be ignored by the interpreters, whether they were judges, arbitrators, dispute boards members or even parties directly involved with the execution of these contracts and responsible for the decision-making throughout. Click here to read the Introduction


Architects Keeping Good Records

June 27th, 2019

by Michael Ogus

A recent case in the Technology and Construction Court (TCC): Freeborn v Marcal [2019] EWHC 454 (TCC), highlights the importance to all architects of good record keeping, providing a written brief and ensuring that any changes to the brief are clearly explained to the client.

In this case the court held an architect to be negligent, and in breach of contract, for amending the design of a floating cinema room without the agreement or knowledge of his domestic clients and awarded damages of nearly £500,000. Interestingly, this award was to cover the costs of demolition as the court considered that the final design was so different to the original proposal that demolition and reconstruction, rather than rectification, was a reasonable course of action.


Phillip Freeborn and Christina Goldie, (“the Clients”), appointed Dan Marcal Architects, (“Marcal/Mr Marcal”), to design refurbishment works to their home in Totteridge, North London. The works included converting the pool house into a function room and constructing a “glass box on legs” as a cinema room. The Clients were unhappy with the result and brought a claim for professional negligence. The key dispute, as identified in closing submissions, was “whether or not Mr Marcal redesigned the cinema box without telling the Claimants and arranged for the construction of a cinema box which they had not approved.


Marcal maintained that the scope and nature of its role changed over time as its instructions changed. It argued that it entered into an “ad hoc contract” with the Clients to provide various architectural services at the hourly rate of £35 per hour, eventually invoicing the client for 1,000 hours or £35,000.

The Judge rejected this argument. He considered that a contract made partly orally and partly in writing based on email exchanges and meetings was effective.

Record keeping

Mr Marcal described his daybooks, notebooks and sketch pads as “tumble dryer of information”. The judge however described them as:

“a tumble dryer of misinformation. The note books are confused, confusing and chaotic.”


“They are not in any chronological order or indeed in any order. It was pure chance which led to any daybook, notebook or sketch pad being used on any particular day or for any particular project or, indeed, being used for personal rather than professional purposes. The Defendant had no clear recollection whether any entry was a proposed agenda, minutes of a meeting or subsequent retrospective musings. It was never clear from the notebooks who attended any particular meeting or who said what.”

The judge observed that Marcal had produced no written contract, no written brief, no minutes of any meetings with the Clients or the Contractors, no planning reports and no interim accounts or valuations for the works. When asked to explain his recollection of events Mr Marcal had to rely on the “tumble dryer of information” in the absence of supporting contemporaneous documentary evidence.

Design development

In October 2014 the parties began discussing the idea of a glass box to house the cinema. This was to be suspended from the ceiling and supported on four legs. Marcal developed the design and and sent 3D renderings of the proposal to the Client. What was eventually constructed was described by counsel for the claimants as a “wonky industrial design” not the “sleek modern look” illustrated in the 3D renderings.

Marcal contended that the transformation of the design was agreed over a series of meetings held between November 2014 and May 2015. The Judge considered each meeting in turn and concluded –

“None of the Defendant’s accounts as to how the design developed from sleek modern to wonky industrial to use the words of Counsel for the Claimants, which I consider is a fair description as to what was anticipated by the Claimants and as to what was provided, is convincing. The Defendant’s general lack of credibility when it comes to making the best of what he scribbled in his daybooks makes his history of the alleged development of the design very difficult to accept.”


“ … Mr Marcal redesigned the cinema box without telling the Claimants and arranged for the construction of a cinema box which they had not approved and which was significantly and critically different from the sleek modern look they were expecting. The wonky industrial look was not discussed with the Claimants, was not what they expected to be provided and had not been approved by them.”

The Architect’s Registration Board (ARB) Code of Conduct 2010

Registered architects should be aware of their obligations under the Architect’s Registration Board Code of Conduct 2010, (“the ARB Code”), in respect of appointments and managing the brief. The ARB Code, which was referenced during proceedings, sets out the duties of an architect before undertaking any professional work as follows:

“4.4 You are expected to ensure that before you undertake any professional work you have entered into a written agreement with the client which adequately covers:

  • the contracting parties; 
  • the scope of the work: 
  • the fee or method of calculating it; 
  • who will be responsible for what; 


4.5 Any agreed variations to the written agreement should be recorded in writing.”

Written brief

The Judge considered that it would be bad practice not to have recorded the initial brief or any changes in design development in writing and considered on the evidence that there was neither a written brief nor a written agreement.

 “ … to avoid any misunderstanding at the very least, a written brief is essential and changes to that brief must be recorded in writing whether by drawings, sketches and/or minutes of meetings.”

“This is not only necessary but the absence of these documents was causative of the losses claimed on this claim. The Defendant effectively went on a frolic of his own producing a wonky industrial design rather than the sleek modern design the Claimants were expecting.”

The Judge emphasized the importance of this in relation to small projects which have a novel design.

“ … any reasonably competent architect who did not in exceptional circumstances produce a written brief and did not explain in those exceptional circumstances in writing why such a written brief had not been produced would be in breach of any duty of care owed to the client.”

In summary the Judge stated –

“The central plank of the Defendant’s case on approval was the so-called daybooks. However, these daybooks – the tumble dryer of information – could not be relied upon because they could not be reliably used as a source document. Not even the Defendant could understand what they recorded or when these records were produced. The Defendant’s failure to produce a written brief was a serious breach of duty which went to the root of the difficulties which he and the Claimants encountered. What was also an important failure was his failure to record the design changes from the sleek modern design for the cinema box illustrated in the 3-D picture he commissioned to the wonky industrial design eventually produced to the Claimants for their approval … “

In essence, the failure to provide a written brief will amount to a “serious breach of duty”.


In cases of this type, the award of damages typically relates to the cost of rectifying the defective works. In this case, however, court accepted that rectification was not appropriate and awarded damages based on the cost of demolition.

“The Claimants have decided to demolish the cinema room. I consider such a decision to be a reasonable decision. Whilst I accept that the ordinary measure of damage when an architect has acted negligently is the cost of rectification, I do not consider that this particular ugly duckling can be turned into a swan. What was provided is so different to from what the Claimants reasonably expected that I consider demolishing this cinema is the reasonable course going forward.”

This can be contrasted with the decision in Ruxley & Forsyth [1995] UKHL8 where demolition and reconstruction were held not to be reasonable steps, notwithstanding that the project (in the case a swimming pool) did not comply with the brief.


Marcal’s breach of duty was not attributable to a consideration of the aesthetics of the cinema box. The Judge was clear that opinions on the appearance of the cinema box are subjective. The issue at hand, he said, was the failure of Marcal to agree the brief with the Client and keep them informed of any possible changes during design development.

“The appearance of the cinema and who likes what are all issues which are somewhat subjective. There may be people who prefer the industrial wonky design to the sleek modern design. However, that is why it was essential not only to agree the brief but also to ensure that the Claimants had a clear understanding as to what would be provided.”


This case highlights the importance to all architects of: keeping good records that can be relied upon; of defining and recording the brief; and, most importantly, where changes are made to the brief ensuring that the client is made fully aware of these changes at all stages. In addition, registered architects should be aware of their obligations under the ARB Code regarding appointments and variations to the brief.


RIBA New Code of Conduct 2019

June 27th, 2019

by Katerina Hoey

Updated RIBA Code of Professional Conduct:

The Royal Institute of British Architects (RIBA) published an updated Code of Professional Conduct on 8 April 2019, (“the RIBA Code”). This came into force on 1 May 2019 alongside new procedures for dealing with disciplinary issues.

The most significant aspect of the new disciplinary procedures is a change in the standard of proof from ‘beyond reasonable doubt’ to ‘a balance of probabilities’ (RIBA Disciplinary Procedures, para 9.16), aligning it with requirements set by many other professional and regulatory bodies, including the Architects Code (2017) of the Architects Registration Board, (“the ARB Code”).

While the RIBA Code still retains its three principles of ‘Integrity’, ‘Competence’ and ‘Relationships’, it has been expanded into a comprehensive 18-page document, incorporating an introduction section and non-binding guidance notes within the various provisions as well as a comprehensive list of defined terms.

‘Principle 1: Integrity’ has been significantly expanded and includes re-written and extended sections on the following:

  • ‘Impartiality and undue influence’;
  • ‘Statements’;
  • ‘Conflicts of interest’;
  • ‘Confidentiality and privacy’ (incorporating legislative requirements under GDPR); and
  • ‘Bribery and corruption’ (incorporating legislative requirements under the Bribery Act 2010).

New requirements have been added, relating to:

  • ‘Handling client money’ (aligning the RIBA Code with Standard 7 of the ARB Code); and
  • ‘Criminal conviction / disqualification as a director / sanction’ (aligning the RIBA Code with Standard 9 of the ARB Code as well as incorporating para 1.3 from RIBA Guidance Note 1).

‘Principle 2: Competence’ has been significantly expanded and almost entirely re-written. Extended sections include:

  • ‘Skill, knowledge, care, ability’ (aligning the RIBA Code with Standard 2 of the ARB Code regarding arrangements for work to continue in the event of a Member’s incapacity or worse);
  • ‘Terms of appointment’ (significant detail added);
  • ‘Time, cost, quality’ (including a new requirement under 3.4 regarding the need for specialist cost control advice); and
  • ‘Record keeping’ (incorporating legislative requirements under GDPR).

New requirements have been added, relating to:

  • ‘Health and safety’ (incorporating statutory requirements under the CDM Regulations);
  • ‘Inspection services’;
  • ‘Building Performance’ (aligning the RIBA Code with the updated Plan of Work, new section 7);
  • ‘Heritage and Conservation’;
  • ‘Town and country planning’;
  • ‘Law and regulations’;
  • ‘Certification’ (possibly in response to recent case law);
  • ‘The environment’ (aligning the RIBA Code with, and significantly expanding upon, Standard 5 of the ARB Code); and
  • ‘Community and society’.

Several obligations have been added to principle 2, which are significantly more onerous or may present a challenge in terms of assessment of an alleged breach and/or the application of the RIBA Code. These include:

  • 6: “Members must make appropriate arrangements for their professional work to continue in the event of incapacity, death, absence from, or inability to, work”. While this is already contained within the ARB Code (paragraph 2.2) and appears feasible for a medium to large practice, a small practice or sole trader is likely to breach this requirement on a regular basis. Guidance note GN 16 suggests that “appropriate arrangements” might include having an agreement with another local practice for them to offer to continue the work for the client. It is difficult to see how this might work in practice, however, and such an arrangement is unlikely to be of great benefit to a Client who will still need to put their project temporarily on hold while the new Architect plays ‘catch up’.
  • 14: “Members should reflect on and evaluate their own work”. It is not at all clear how any potential breach should be assessed or how fulfilment of this obligation could be demonstrated.
  • 2: “Members should endeavour to deliver projects that: (a) are safe; (b) are cost effective to use, maintain and service; and (c) minimise negative impacts on the environment during their anticipated life-cycle”. In the current climate, the definition of ‘safe’ is being continually re-assessed. Any reference to this obligation should be viewed, therefore, within the context of an Architect’s obligations under their Appointment, and the industry guidance available and regulatory framework in place at the time the work in question was carried out. Cost effectiveness in use, and impact on the environment during the project’s life cycle, may also present difficulties in interpreting what is reasonable in the circumstances. It will be preferable to clarify these so far as possible in the Brief and the instructions.
  • 4: “Members must take reasonable steps to protect the health and safety of those carrying out, or likely to be directly affected by, construction work for which they are providing professional services. This includes clients and members of the public”. While this would appear to align the RIBA Code with an Architect’s obligations under the CDM Regulations, the guidance notes (GN 6.2, 6.3 and 6.4) state that “‘reasonable steps’ may require doing more than is strictly required by law and regulations” (my emphasis). I anticipate challenges in assessing what may be considered ‘reasonable’ without clear reference to statutory requirements. I would expect an Architect’s obligation under this section of the Code to be assessed within the context of the obligations of other relevant parties, including the Contractor’s responsibility for the site during the construction period.
  • 9: “Members should practice evidence-informed design and should keep records of the evidence used in reaching design decisions”. The guidance note GN 13.9 advises that members should “keep written records of the evidence and data examined and used by them in reaching decisions in the design process… and any reasons for not acting on particular pieces of evidence considered”. This is an onerous obligation and I anticipate challenges ahead in assessing allegations of non-compliance.
  • 2: “In performing professional services, Members should promote stronger communities and improve equality, diversity and inclusion in the built environment”; this is an onerous blanket requirement that does not appear to take into account the requirements of the Client’s brief or any other contextual issues including assessment of existing equality diversity and inclusion. Reference to “in the built environment” is broad and I anticipate challenges ahead in assessing allegations of non-compliance and dealing with a potential proliferation of third-party claims.

‘Principle 3: Relationships’ has also been expanded and re-written in places. Extended sections include the following:

  • ‘Peers’ (new paragraph 3.4 aligns the RIBA Code with Standard 9 of the ARB Code);
  • ‘Equality, diversity and inclusion’ (incorporating legislative requirements under the Equality Act 2010);
  • ‘Employment and responsibilities as an employer’ (bringing in and expanding upon RIBA’s Employment Policy);
  • ‘Competitions’ (incorporating reference to applicable procurement law); and
  • ‘Complaints and dispute resolution’ (aligning the RIBA Code with Standard 10 of the ARB Code).

New sections add requirements relating to:

  • ‘Copyright’;
  • ‘Previous appointments’;
  • ‘Modern slavery’ (incorporating legislative requirements under the Modern Slavery Act 2015);
  • ‘Advertising / business names / use of RIBA crest and logo’ (incorporating previous RIBA Guidance Note 2 ‘Advertising’);
  • ‘Insurance’ (incorporating previous RIBA Guidance Note 4 ‘Insurance’ and bringing the Code in line with ARB Architects Code Standard 8);
  • ‘Non-disclosure agreements’; and
  • ‘Whistleblowing’.

Two obligations have been added to principle 3, which are significantly more onerous or may present a challenge in terms of assessment of an alleged breach and/or the application of the RIBA Code.

  • 4: “Members who become aware of a probable breach of the Code by another member shall report it to the RIBA Professional Standards team, with such supporting information and evidence as is available”. Further explanation of this obligation is provided in the guidance note (GN 3.4) which states that “failure to report a probable breach is only justified when prevented by law or the courts…”. While this requirement is included within the ARB Code (para 9.3), it is less stringent and requires reporting “in appropriate circumstances” and where conduct “falls significantly short”; the language used in the RIBA Code indicates that this applies to a probable breach of any aspect of the RIBA Code, which is broader in scope than that of the ARB.
  • 3: “Members shall use reasonable skill and care to use supply chains which are free from Modern Slavery”. Further explanation of this obligation is provided in the guidance note (GN 5.3) which states that “’Supply chains’ includes both materials and people. Members should be aware of the labour used in the extraction, manufacture and production of materials they use or specify, as well as the direct labour involved in their projects”. This wide interpretation of the supply chain imposes an onerous obligation on Architects; while appropriate enquiries can be made of Manufacturers during the specification process and in theory it is possible to incorporate a Modern Slavery statement by a Contractor into the tendering process, the expectation expressed in the guidance note that Members “should be aware of the… labour involved in their projects” is somewhat unrealistic.

The recent cases of Riva v Foster [2017] EWHC 2574 (TCC), Burgess v Lejonvarn [2018] EWHC 3166 (TCC) and Freeborn v Marcal [2019] EWHC 454 (TCC) highlight failures regarding obligations which are the subject of the amendments made the RIBA Code; these include:

  • ‘Skill, knowledge, care, ability’ and paragraph 1.9 “Members shall advise their clients in writing as soon as is reasonably practicable if the Member’s assessment of the likelihood of achieving the client’s requirements and aspirations changes during the project”: Freeborn v Marcal.
  • ‘Terms of Appointment’: Riva v Foster and Burgess v Lejonvarn;
  • ‘Time, cost, quality’ and paragraph 3.3 (b) “Members must carry out their professional work without undue delay and, so far as it is within their powers… in accordance with any cost limits agreed with their clients”: Riva v Foster;
  • ‘Keeping the client informed’: Freeborn v Marcal;
  • ‘Record keeping’: Freeborn v Marcal; and

To conclude, the updated Code has gone a long way in aligning itself with standards of professional conduct required by other regulatory bodies and has responded to updated legislation, regulation and recent case law. However, some requirements have been introduced that may cause difficulties in defining and/or assessing in terms of non-compliance. These may have been best left within the guidance notes.