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Ian McGlinn vs everybody else
You build your multimillion-pound dream home, but
there are some defects. So you leave it empty for five years,
then tear it down and sue everyone in sight, apart from the
builder, which has gone bust. Do you win?
“The upshot was that Mr McGlinn decided to
demolish Maison D’Or. It was a decision shrouded in mystery,
said the judge”
When Anita Roddick wanted to open a second
Body Shop, the bank turned her down. Acquaintance Ian McGlinn
stepped in with the needed £4,000. When he stepped out, his
shares sold for more than £100m. Now what do you do with all
that money? St Aubin in Jersey took his fancy. He had Maison
D’Or designed and built as his luxury pad. But just as
completion neared in January 2002, one or two snags were
spotted. The House of Gold sat empty and unused until 2007, when
it was demolished. It would take £3.7m to rebuild!
A seven-week trial has just finished; Mr McGlinn
sued his contractor, his architect, his structural engineer and
his quantity surveyor cum project manager. Heaven only knows
what the legal costs were for five firms of solicitors and seven
barristers for seven weeks.
So, it’s all about defects. Tricky for the
tribunal, mind you: the house was now rubble. True, there were
photographs, videos, and evidence of inspections. But it wasn’t
a case of cracks, damage and leaks; it was more a general level
of dissatisfaction from Mr McGlinn. “In general terms,” said the
judge “it seems clear that this was – if nothing else – a
generally sound and secure structure.” And yet by now it was
flattened, and the builder was in administration. He had long
since left the project because of a dispute about unpaid sums.
So, said the judge, for years the house stood empty, unheated
and unventilated.
The first inquiry into defects read like a
builder’s snagging list. But it grew into a much more extensive
defects schedule; most of it related to bad workmanship
allegations against the builder. Then the works were “opened up”
for inspection, including the stripping of the roof; this
involved the removal of a mere 10,000 slates. The judge thought
that was exceptional. It seems £687,000 was spent in order to
decide if £870,000 should be spent on remedial works. The upshot
was that Mr McGlinn decided to demolish Maison D’Or. That was a
decision shrouded in mystery, said the judge.
All that apart, the position of the employer
is ordinarily to require the builder to put right or pay for the
putting right of the defective works. But when the builder is no
longer in business, the employer tends to ask why his architect
didn’t do anything.
The architect owes a duty of care to the
employer. To that extent, this particular case is ever so useful
for the architect’s obligations about “inspection”. In short,
“tailored inspection” is the duty. But the architect’s duty is
not a guarantee that he will reveal or prevent defective work.
Here I recommend every architect to read this 163-page judgment,
and in particular the 57 items of defect. Of these, 22 should
have been picked up by the architect.
Next scrutinised were the duties of the
engineer. The answer keeps coming back to how reasonable it was
to spot the defect and bring it to the attention of the builder.
It is as though the employer lost a chance to get the true
culprit to put right the work. So the cause of the loss once the
builder goes out of business is the professional adviser.
Next came the QS/project manager. The first
problem is what is meant by “project manager”? Nothing was set
in writing about this role. Confusing as well to have an
architect and an engineer each of whom inject project management
skills as an ordinary part of their work. Anyway the attempts to
blame the QS/project manager failed, but watch out all you so
called project managers – fingers get pointed when the builder
culprit can’t be found anymore.
So, what of compensation to Mr McGlinn? What
is the measure of loss? The architect ought to have detected and
brought to the builder’s attention 22 items. The court said the
compensation to Mr McGlinn was the cost of repair. The fact that
he had chosen to demolish was not claimable. All that comes to
£439,000. As against the engineer, it is £135,000. Had the
builder played a part in this trial he “would almost certainly
have been liable for many more individual items than the
architect and engineer put together”. As for who pays the huge
legal costs in all this litigation remains to be seen … there is
another trial deciding all that right now.
Readers are invited to forward recent
judgments for reporting in this column (with full
acknowledgement) to: Tony Bingham, 3 Paper Buildings, Temple,
London EC4Y 7EU. DX: 37164 Biggleswade
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