Like Nero's Domus Aurea, little remains of Ian McGlinn's Maison d'Or – though a legal (rather than archaeological) legacy lives on. John Gelder looks at what this legacy tells us about specification.
This was a case for which the term 'recipe for disaster' might have been coined. The client was 'forthright' and 'relatively quick to anger', he expected a building of very high quality, and the project was remote from the design office (Jersey and Winchester respectively). Compounding these givens, the client 'kept no records himself' and the architect put nothing in writing, there was no contract between them, there was no specification, and the architect put a junior member of staff in day-to-day control on site.
Perhaps not surprisingly, the client and architect fell out and did not communicate directly at all for two years, the client appointed a series of 'fixers' (including a boat captain), and the builder went bankrupt. The client was so dissatisfied with the building (even though it was a 'generally sound and secure structure' and 'evidence of damage (as opposed to defects) could be fairly described
as thin') that he commissioned a truly destructive inspection, and then demolished it, mostly 'because of an accumulation of aesthetic complaints'.
Accordingly the McGlinn case (McGlinn vs Waltham Contractors Ltd [2007] EWHC 149 (TCC)) is a rich source for lessons in the design, documentation and construction of buildings. Many of the lessons seem obvious, but it seems that they bear repeating.
As always, there is a danger in reading too much into the decisions made in any particular case – it is down to the courts to determine the extent to which these decisions apply in subsequent disputes. But since the objective is to ensure that projects don't end up in court in the first place, the logical position is to apply the precautionary principle!
The need for a specification
'On the vast majority of sizable building projects, there will also be a specification. ... The specification will usually be prepared by the architect, and will become one of the most
important component parts of the building contract'.
But in this case there were 'no employer's requirements, no design brief, no specification'. This placed most if not all of the quality management burden on the inspection regime, with all the uncertainty that entails. The Bills, prepared with no direct input from the architect, referenced JCT 98, and included preliminaries clause A33/110 'Good practice' which referred to BS 8000 Workmanship on building sites. But these items set only base level quality standards, which need to be boosted for a project of this kind. The architect's 9 page Building Regulation Notes don't appear to have been issued to the contractor, and in any case could not have defined the requisite quality. NBS Domestic Specification, describing ordinary construction, runs to 75 pages.
The architect charged the client for preparation of a specification (included in Work Stages F and G) but did not produce one: 'I find that this was a major failing on the part of [the architect]'. This issue pops up more generally, as in when architects get ironmongery suppliers to prepare the ironmongery schedule free of charge, while the client probably believes that the architect is doing this itself.
The client's expectations for the quality of the joinery were, naturally, high, and yet there was no joinery specification at all! The architects therefore
'were in breach of contract in failing to provide this specification. They knew that a high standard
of joinery was required; they knew or should have known that, as architects, they had to specify that high standard; they failed to do so'.
The architect's 'failure to specify a high standard of joinery was directly linked to the deficiencies
in the joinery actually supplied and installed'. Damages flowed from this
'because [the architects] are liable for the failure to specify the appropriate quality of joinery in the first place, the foreseeable consequence of that default was the carrying out of inadequate work which, when it came to be replaced, could not be completed by the original contractor free of charge'.
Where architects are involved in projects, one might assume that high standards are always expected, across all trades. Specifications, which define quality, should therefore always be prepared.
However, circumstances can overtake the need for a specification: '... in some instances ... failure
to provide a specification was ultimately irrelevant ...'. For example, the question of the adequacy of the requirement for 'wrot oak' (in the Bills) became irrelevant once idigbo was substituted. But there is no mention of the specification for idigbo that one might expect accompanied the instruction, perhaps because the architect did not issue written instructions on this project!
British Standards
The courts take British Standards seriously:
'What matters are the requirements of good practice, and the British Standard is therefore a
proper place to start'.
'It is always unattractive for a Court to ignore the recommendations of a British Standard unless there is a good reason for doing so'.
Accordingly it was agreed that the coping design should have been to BS 5628-3:1985 (now withdrawn), and that this should have been specified. The judge found that this was a breach of contract by the architect, irrespective of any consequent damage.
In another example, BS 5390:1976 (now withdrawn) required drips to lintels; but they weren't provided for in drawings or in the specification. The judge found the architect responsible for this design defect, even though there was no consequent damage, there was no 'significant risk of
such damage', and the architect had argued that the BS was wrong to require drips (they are certainly not indicated in McKay's Building Construction).
Parallel to this, the judge relied on BS 5628-3 and BS 5390, with respect to 'weathering' (chamfer) to quoins etc. Again, even though there was no damage, the architect was in breach of contract as weathered edges were not specified 'either expressly or by reference to the relevant part of British Standard 5390’.
What BSs don’t say is also of consequence. On the use of softwood for the windows ‘there is nothing in ... any part of a British Standard, or other technical guidance, which requires the use of hardwood in this location'. On the use of lacquered brass for internal ironmongery, the judge noted that there was no BS stating that lacquered brass was not appropriate. The use of galvanized straps to the windows is the norm, and there was no BS to the contrary. The use of MDF for stair strings is acceptable, because it was not in breach of British Standards or other technical literature. No BS or other technical recommendation requires membranes under shower trays, so again the architect was not liable for this omission. Clearly familiarity with BSs, in terms of what they do and don’t specify, is desirable.
Either way, NBS refers to specific BSs as appropriate, which should go some way to addressing the business of failure to specify. NBS also includes guidance on what BSs say and don't say.
Silence in the specification
Everything does not have to be specified – silence is permitted. In this case, the judge held that 'a reasonably competent architect would not specify the precise type or make of sealant to be used; that would be a matter for the specialist joinery sub-contractor'. Similarly, the mullion-mullion junctions were not sealed, but ‘an architect would not tell a joinery specialist how to do his job’. Nevertheless, NBS provides for specification of sealants if this is thought necessary.
On the other hand, some apparently minor things should be specified. Regarding the nature of the perimeter strip corner mitres, to accommodate expansion of floor boards, the judge said 'this provision should have been stipulated by [the architect], either in a specification or in a design drawing'. I'd suggest a drawing would be the better vehicle.
Minimum specification
Though the engineer specified 85 μm for the galvanizing (NBS guidance to G10/610 suggests that more may be needed in coastal areas), the judge accepted that this was intended only as ‘a minimum specification which would have been comfortably exceeded (as it was) when the galvanising was applied’ . The average installed thickness was actually 2000 μm, and there was some debate about if even this was adequate! Some people are never satisfied.
Proprietary specification
Specification of BSs is not always appropriate. For example, it was alleged that, while the artificial stone met BS 1217:1997 requirements for capillary absorption levels, it did not meet requirements for surface absorption levels, and that the ISAT surface absorption criteria of BS 1217 should have been specified. This was rejected as not relevant because (like the galvanizing) the outcome was what was wanted in spite of this not being specified, and in any case the ISAT test is not appropriate for the client's requirement for an aged appearance matching natural stone.
Following from this, on proprietary specifications, the judge had this to say:
'I consider that, if an architect is specifying a reputable product …, the identification of the required product is sufficient for specification purposes. It is unnecessary for an architect to specify the product of a well-known manufacturer, and then go on to stipulate that the materials supplied then had to comply with various British Standards or other tests.'
This is in line with the changes NBS is making to NBS Plus, in which the drop-in proprietary clauses make no reference to standards. Conversely, the generic NBS clauses, which typically reference standards, will be modified so that they do not name brands. We are making these changes for a variety of reasons, but it’s nice to see a judge advocating the same thing.
Defective products
Apparently defective products may actually be acceptable. In this case, the timber to the dining room was required, by the client, to be old and weathered so 'the existence of wormholes did not mean that the timber was in any way defective'. Of course, the client may not have had wormholes in mind … One does need to be careful when specifying recycled products – which defects will be tolerated, and which will not?
Specification coordination
In the discussion on the adequacy of the term 'wrot oak' (in the Bills) , the judge observed that the architects 'cannot be criticised for an entry in a document which they did not prepare'. Similarly, though the interior designer's kitchen design and specification were defective, the architect was not held liable, inferring that there was no coordination role in this case. The concept of the lead specifier was not raised, but it seems to me that this is usually a role expected of the architect for this sort of project, and that technically inadequate content in documents prepared by others is exactly the sort of thing they should be looking for, if it lies in their competence.
Substitution
There were some key substitutions, but in none of these cases was the issue of 'equivalence' raised (see 'Or equivalent', NBS Journal 5). The proposed products were judged on their merits, which is the approach NBS encourages. The decisions go some way to defining parameters to be considered when considering proposals for substitution.
Oak was replaced by idigbo, but was this reasonable? Amongst other things, the judge noted that 'the idigbo looked the same as oak and, as the experts have agreed, was technically suitable'.
Granite was replaced by artificial stone, which was not 'an inferior or unsuitable material for use at Maison d'Or' and, though it changed the appearance of the house in a minor way, the client knew what the change involved.
French slates (not used on Jersey any more) were replaced by Spanish slates at the contractor's suggestion, at tender I think, with the result that the description in the contractor's letter (reputable supplier, grade A to BS 680-2:1971 [now withdrawn], 75 year guarantee, supporting test certificates) became the specification once the substitution had been accepted. Specifications can come from many quarters.
Conclusion
The main lessons are: do prepare a specification, do refer to Standards, remember that not everything needs to be specified, be clear about whether requirements are minima or maxima, don't cite Standards if specifying by brand (and vice versa), be careful with recycled products, clarify your coordination duties, and deal with proposed substitutions on their merits.
Unlike adjudication and the like, with a court case we all get to benefit from the findings – this case has filled quite a few column inches in industry magazines, as writers endeavour to disseminate the findings in digestable form (e.g. Tony Bingham, 'Ian McGlinn vs everybody else', Building, 13 April 2007). For the raw judgement, the source of the quotes in this article, see www.bailii.org/ew/cases/EWHC/TCC/2007/149.html.
