Midlothian Council v Bracewell Stirling Architects & Others

[2018] CSIH 21

This was a Scottish appeal case arising out of a claim for £12 million in damages in respect of the loss at a social housing development in Midlothian. The homes were rendered uninhabitable as a result of the ingress of carbon dioxide from disused mine workings. Midlothian said that Bracewell, who had been appointed as lead Consultant in terms of a Framework Agreement in 2005, had assumed responsibility for the work, including the ground investigations, carried out by the second defender, and the peer review of those investigations carried out by the third defender. The question for the court was whether Bracewell were liable for work carried out by the other defenders.

Clause 3.8 noted that: Bracewell was the “lead consultant and lead design consultant” who would have “overall responsibility for co-ordinating the Other Consultants (if any) and co-ordinating and integrating the input (including the detailed design prepared by or on behalf of) of all designers, the Council and the Contractor”. They were therefore made responsible for the overall progress of the particular “Build”, in this case the Gorebridge site. 

By clause 3.15A, Bracewell were “fully responsible for the whole design” and for the obtaining of all consents needed for such design. Lord Carloway said that this obligation was intended to embody the architect’s usual responsibilities for overall coordination of the design works. It did not constitute an acceptance of liability for anything that might ultimately go wrong with the design, no matter what its cause. It was apparent from clause 3.16 that the parties were contemplating a standard which required the consultant to use only “reasonable endeavours” to achieve an objective.

Clause 5.1 referred to work to be carried out in the future in respect of a particular project. It was prospective in outlook, rendering the consultant “wholly responsible” for the site investigation works including surveys. Here that was a reference to the “normal site investigations” to be carried out, and for which the consultant was to obtain collateral warranties from the relevant contractor. It was not obviously referable to investigations, such as the ground investigations, carried out by the second defender on the instructions of Midlothian. It referred to work subcontracted by Bracewell and so over which they would have had some measure of control and contractual rights against the subcontractor.

Clause 5.5 was indicative of Bracewell assuming responsibility for the work of subconsultants, being those appointed (prospectively) by them in relation to the particular project, but that responsibility related to their general skills and was limited to “reasonable endeavours” in that regard and in ensuring that the subconsultants complied with legislation, guidance and procedures. Even in relation to the circulation of any report of investigations, clause 5.6 again limited this to making “reasonable endeavours” to ensure that, in relation to a particular project, all relevant persons were aware of the contents of the report.

Clause 7.1 dealt with the standard of skill and care to be used by Bracewell. This was “all reasonable skill and care” in carrying out the Services and the Build Services. This was again forward looking. Although clause 15.1 provided that Bracewell were to be responsible for the performance of obligations or Build Services by certain parties, this was specifically restricted to those to whom they have delegated (subconsultant or subcontract) work. It was not referable to “Other Consultants” not appointed by them. In relation to those appointed by Midlothian, clause 22.2 noted that: “the Consultant shall not be held responsible … for the services provided by any other party appointed by the Council but without prejudice to the Consultant’s duty to warn the Council of any concerns as to the performance by any Other Consultants”. Bracewell therefore had no responsibility other than a residual duty to warn Midlothian of any concerns about their performance.

Bracewell assumed no responsibility for site investigations carried out by anyone other than themselves or their own subconsultants. The language of the contract did not impose any responsibility on Bracewell for a breach of contract, including negligence, by the other defenders. This was also consistent with business common sense. It would not be usual practice for a contractor to assume liability for work carried out by parties with whom they were not in a contractual relationship, or for work which had been carried out before they were involved in the particular project. Lord Carloway stated:

“Although it may be open to a commercial enterprise to assume responsibility for the actings of another, with whom they have had no contractual relationship, whose specialist expertise would be outwith their own skill base and whose appointment preceded their own, it would be an unusual step and one carrying very considerable risks.”

Further, those risks may not have been insurable. It would, in addition, be anomalous if the standard of skill and care owed by Bracewell for their own actions was “reasonable” but they were liable for those of the other defenders without qualification. 

Accordingly, the lead consultant Bracewell’s appointment only imposed contractual responsibility for the services provided by its own subconsultants and not third parties, i.e. the defenders here, appointed by Midlothian, the employer.

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