Design Liability: Process or Outcome?

Adam Robb

February 2017

A paper presented to the Society of Construction Law at a meeting in London on 7th February 2017

This paper discusses the recent Court of Appeal decision in MT Hojgaard v E.ON Climate and Renewables which re-considered the relationship between 'process' obligations and 'outcome' obligations in relation to design in the context of a design and build contract appearing to contain both types of obligation. Adam Robb examines the issues raised by the judgment, in particular the relevance of the distinction between the requirement for a 'design life' of 20 years and the requirement that 'the design shall ensure a lifetime of 20 years' to the question of what type of obligation the contractor was under, and highlights the Court of Appeal's emphasis on the lack of express warranties for fitness for purpose. The paper also identifies some key considerations for both employers and contractors and the need to clarify the order of priority and the relationship between obligations for reasonable skill and care and fitness for purpose.

Introduction - B. MT Hojgaard v E.ON Climate and Renewables UK Robin Rigg East (TCC, Edwards-Stuart J) - (1) The facts - (2) The terms of the contract - (3) Was there a warranty that the foundations would last 20 years? - C. MT Hojgaard v E.ON Climate and Renewables UK Robin Rigg East (Court of Appeal) - (1) Introduction - (2) The judgment of the Court of Appeal - D. Discussion - (1) Design life- (2) Clause 8 of the contract conditions - (3) Conclusion.

The author: Adam Robb is a barrister practising at 39 Essex Chambers, London.

Text 16 pages.