All aspects of expert witness work in construction litigation have their specific challenges and complexities, but work on cases involving construction defects, especially when there is a parallel repair brief, can be particularly involved and even hazardous. On one occasion, returning from a site in Somerset, I was almost arrested when a police officer spotted what she thought was a consignment of heroin in my case – it was actually a sample of failed render which I needed for testing – and in another case involving major repairs to an occupied block of flats I found that my site visits were being logged by the police because one of the tiniest flats was being used as a brothel!
Happily, I came through these and other incidents unscathed but there are many other aspects of building defect work which make it notably different from investigations of planning or contract disputes. First is the fact that there may well be dozens or even hundreds of different defects arising from poor design and construction of a single project and each one will probably need to be separately investigated to find out what has gone wrong, who is responsible and how serious the problem is. Then, if you have a dual brief to report and repair, you will also need to work out what to do about each one and to incorporate that into an overall repair contract. This can, as you may imagine become extremely complex and time consuming.
My first involvement with such work was in the 1980s when the practice I was with then was instructed by a Housing Association to investigate two seriously defective developments in Barnet. This was in the days when we still built large numbers of houses and flats in the UK and in this case an architect, an engineer and a QS had set up our client Association and then been swamped by approvals for 30 or more projects in a very short space of time. The schemes, moreover, were in many cases intricately designed, increasing the numbers of dwellings on constrained sites but, at the same time, generating great numbers of complex detailing and construction problems.
Almost inevitably, as the schemes were finished and occupied, it became clear that great numbers of them were riddled with serious defects, often with the same problems rearing their heads in several different developments where incorrect details had been passed from one contract to the next. A drawing for one particularly poor parapet detail had been passed from one team to another with a hasty note added: ‘We’ve had a lot of problems with this; hope you have better luck.’ - but to no avail. Nor were the problems confined to those caused by incorrect and inadequate detailing; poor construction and lax site inspection were also major contributory factors.
The first difficulty for the expert in cases like this is simply to discover what the problems are. Detailed site inspections, analysis of the files and occupier interviews all help to build the picture but it can still be very unclear how many separate problems you are dealing with and in one case a major drain failure below the building only came to light very late in the day when a resident, who had been refusing to give access for inspection, ran off leaving a small mountain of unpaid bills and a flat with damp patches half way up the walls.
Once the problems affecting each development have been identified- and there may sometimes be dozens of different failures to deal with – the next essential is an understanding of ‘building pathology’. The huge damp marks on the ceiling of a particular flat may result from a roof failure, from interstitial condensation, from the builders’ failure to connect the bath in the flat above or from the empty scotch bottle bridging the cavity of the external wall. The huge cracks in the brickwork may be caused by clay heave distorting the foundations where a large tree has been removed, by the lack of movement joints or by the failure to ensure that balconies are adequately fixed back to the main building structure.
With every problem, scrupulous analysis is needed to achieve a real understanding of the cause or causes before any attempt can be made to consider questions of negligence and it may also be necessary to reach a view on precisely when any defect occurred. This was particularly so at the time of my first involvement with building defects work, when case law on architect’s liability in tort and on limitations relating to latent defects was changing constantly.
When I was first involved with work of this type it worried me occasionally to be pursuing other hard-pressed architects and it was certainly a difficult time for the profession. Mandatory fee scales had recently gone but there was no possibility of practicing as a limited company, judgements were pushing liability ever further into the future and Housing Corporation policy was to pursue architects in all cases. PI insurance premiums shot up to form 10% or more of turnover.
Looking at the matter more dispassionately though it can never be right if a few architects take to cutting corners, however difficult the circumstanced, and identifying those whose work is negligent has to benefit the profession in the long term. Often such negligence results from obvious causes - persistent failure to resource the work adequately and the use of junior staff without checking their work for instance – but there is also a particularly architectural failure where the client’s best interests are swept aside as the architect single mindedly pursues his vision of ‘his’ building.
I have come across a case recently where, as part of his design concept for a house, the architect drew up an entirely bespoke window system with very large sliding and pivot doors, instead of selecting a manufacturer’s system which had been through the processes and testing of a normal product design programme. Great care was lavished on the details, large numbers of drawings were produced and the finished windows look very fine but they were hugely expensive, the long lead in times contributed to serious delays, they are not properly ‘weathered’ to keep the rain out, they do not include effective thermal breaks to cut condensation risks, they do provide properly for ventilation and they are so enormously heavy that it usually needs two people to open them.
This is difficult territory because I consider it essential that experts should also be involved in normal architectural practice and in that part of my life I spend a lot of time and effort resisting attempts by clients, quantity surveyors and others, to ‘dumb down’ my designs. I think it is entirely right that architects should push against the limits to create exciting new buildings, but at the end of the day a piece of concept design which has gone completely off the rails is as much a defect as bridged cavity or a leaking parapet detail.