Failure to inspect or certify: the architect as contract administrator

On many building projects the architect, or sometimes an engineer, surveyor or project manager, does more than design. They may visit the site to inspect the work, and under the building contract they may act as contract administrator, issuing instructions and certificates for payment and completion. This guide explains what the law expects of a professional in those roles, for homeowners and small businesses in England and Wales whose building turned out to be defective or who paid for work that was not done properly. For claims against the builder itself, see the builder disputes series.

Three different jobs

A professional's appointment may cover:

1. Design: producing the drawings and specification. See design defect or bad workmanship.
2. Inspection: visiting the site during the build to check that the work is going ahead in accordance with the contract.
3. Contract administration: acting under the building contract between client and builder, issuing instructions, valuing and certifying payments, and certifying completion.

Each needs to be in the appointment. Many domestic appointments stop at design or planning drawings, and in that case there is no duty to inspect at all.

Inspection is not supervision

In McGlinn v Waltham Contractors Ltd [2007] EWHC 149 (TCC), the judge set out the classic statement, from an earlier case, of an architect's site duties: "No one suggests that the architect is required to tell a contractor how his work is to be done, nor is the architect responsible for the manner in which the contractor does the work." What the duty does require "is to follow the progress of the work and to take steps to see that those works comply with the general requirements of the contract in specification and quality".

The judge then noted that older RIBA terms required the architect to "supervise and inspect", while the terms in that case required only periodic inspections: "That is a potentially important reduction in the scope of an architect's services."

What periodic inspection requires

The judgment summarised the principles (at [218]). In short:

• The frequency and length of inspections should be tailored to the work going on at the time. Inspecting only at fortnightly or monthly site meetings may not be enough, because "the contractor will know that, at all other times, his work will effectively remain safe from inspection".
• For an important element, the inspector can instruct the builder not to cover it up until it has been inspected.
• Defective work being covered up between visits is not automatically a defence. It depends on what the inspector should have expected to be happening on site, how important the work was, and how much confidence the inspector could have in the builder.
• Where an element will be repeated throughout the building, the inspector should see it early on to judge whether the builder can do it.
• Reasonable inspection does not require looking at everything in detail, and "it is almost inevitable that some defects will escape his notice".
• It is "misconceived" to assume that because there is a defect, the inspector must have been negligent: "The architect does not guarantee that his inspection will reveal or prevent all defective work".

The same judge said the inspection duty for work designed by others, such as an engineer's structural design, is "much less onerous" than for the architect's own design.

A recent example of a missed defect is Vainker v Marbank Construction Ltd [2024] EWHC 667 (TCC), where the specification called for toughened and laminated glass in balustrades but the builder installed toughened glass only. The experts agreed that "a reasonably competent architect with inspection duties would have identified that the installed glass was not laminated".

Certificates and over-certification

Under a building contract, the contract administrator usually certifies how much the builder should be paid as the work progresses, and certifies key events such as completion. If the work has been valued too generously, or defective work has been paid for, the client may have paid money it cannot get back, particularly if the builder later fails.

In Sutcliffe v Thackrah [1974] AC 727, an architect issued interim certificates which led to the building owner paying the contractor too much; the contractor later went into liquidation, and the owner could not recover the cost of remedying defective work. The architect argued that, when certifying, he was like an arbitrator and immune from negligence claims. The House of Lords disagreed and allowed the owner's appeal. Lord Reid described the position as being that the architect must not only exercise due care and skill but also "reach such decisions fairly, holding the balance between his client and the contractor".

So the contract administrator does two things at once: makes fair decisions under the building contract, and owes the client a duty of reasonable care and skill in doing so.

Completion and defects

Building contracts often give the contract administrator the job of certifying when the works are complete and when defects have been put right, and the exact effect of each certificate depends on the contract. Copies of every certificate issued, and the contract they were issued under, are therefore central evidence.

Proving a failure to inspect or certify

These claims rely heavily on records: what the appointment required, when the professional visited, what they saw and recorded, what stage the work had reached, and what was certified and paid. In McGlinn the judge described the absence of any records of the architect's periodic inspections as "a matter of particular concern". The court will usually need expert evidence from someone in the same profession on what a competent inspector would have noticed.

What a solicitor will want from you

• The professional's appointment, especially any wording about inspection, supervision or contract administration.
• The building contract, and every certificate, valuation and instruction issued under it.
• Site meeting minutes, inspection reports, emails and photographs from during the build.
• A record of what was paid to the builder and when.
• Evidence of the defects and when they appeared, and any expert report.
• What has happened to the builder since: still trading, insolvent or uncontactable.

Run the free case check

This guide is general information about the law of England and Wales. It is not legal advice. What an inspecting architect or contract administrator had to do depends on the wording of the appointment and the building contract, and on expert evidence about what a competent professional would have done.