TCC analyses scope of duties in Construction Management

• 15 May 2025
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In its decision in Vitsoe Ltd v Waugh Thistleton Architects Ltd [2025] EWHC 850 last month, the TCC gave both a general indication as to how the scope of a consultant’s duty is ascertained, and specific findings on the scope of the parties’ duties in construction management procurement. 

By way of background, in or around 2016, the claimant procured the construction of its new office and distribution HQ via a construction management route, by which it appointed an architect, a construction manager, and a series of trade contractors.  During the works, the timber components of the roof got wet during heavy rainfall, and they subsequently began to rot and decay. The claimant sued the defendant architect, alleging that the damage was the result of the architect breaching its duties (presumably the management contractor was not pursued due to its poor financial health: it entered into voluntary liquidation in December 2018). 

Of general interest will be the approach that the judge took to ascertaining the scope of the architect’s duty, which was done by defining the scope of that duty by reference to the duties of the other parties (management and trade contractors) involved in the project. Taking that approach makes the task of identifying a party’s duties more complex, because it will not be as simple as looking at the relationship between the employer and the consultant. Moreover, and as a result, it may, as in this case, lead to unexpected outcomes for the employer because there are more factors informing the scope of the duty. 

More specifically, while the parties in this case appeared to be appointed using bespoke (rather than standard form) construction management and trade contracts, the judgment is of note for the findings on the scope of duties in the construction management procurement route used.  The judge cited Keating on Construction Contract’s adoption of the TCC’s previous observation that “Usually, the project construction manager will be seen as the ‘co-ordinator and guardian of the client’s interests’”.  He made the following findings on the duties of each party: 

The construction manager was to:

1. review the designs prepared by the architect and trade contractors and advise as to feasibility and suitability for construction and compatibility between the separate parts.
2. maintain the overall programme including reviewing and ensuring trade contractors’ programmes are compatible with each other and the overall programme.
3. ensure adequate steps were taken for the protection of the works and unfixed materials.
4. have exclusive responsibility for the management control of the site; and
5. comply with the employer’s instructions and, as necessary to that end, give instructions to trade contractors. 

The trade contractors were to, among other things:

1. design the trade works with reasonable skill and care and to participate in the design review process.
2. co-ordinate with the construction manager and other trade contractors.
3. protect the trade works during construction; and
4. comply with the instructions of the construction manager.

When considering the architect’s scope of duty, the judge cited the warning in Hudson Building and Engineering Contracts that “The Architect’s duty is normally confined to stipulating the final permanent result required and if this has already been done, the Architect is under no further duty to assist…”.  The judge found that the architect was, foremostly, the designer, under a duty to provide design information, which it did via drawings and detailed specifications.  It was for the trade contractors to complete detailed designs. 

However, the architect was not under a duty to protect the roofworks.  Rather, the trade contractors owed that duty, being obliged to use reasonable skill and care to satisfy the performance requirements/specifications for the trade works, namely the requirements of the architect’s specifications, which stipulated performance requirements for protection of the works and adverse weather. Further, the architect was not under a duty to undertake a moisture content control plan or risk assessment, to supervise or manage the trade contractors, or to undertake any programming of the roof works (despite programming being part of the strategy for protecting the works).  It also only had an extremely limited role in considering the trade contractors’ tenders. 

As such, the architect was not liable to the claimant for the damage to the roofing timber, and so the claimant was unable to recover the £2,533,789.81 worth of damages which the judge assessed it to have suffered.