Periodic inspection, not perfection: High Court confines architects’ liability; clarifies s.17 “consideration” and s.34 contributory negligence in ad‑hoc build contracts — Ashdrum Lodge Ltd t/a Kiernan Homes v Barbouti [2025] IEHC 522

Introduction

This detailed High Court judgment (Stack J) arises from an unusual, multi-year, high‑value residential and landscape refurbishment at Derrybawn House, Co. Wicklow, carried out without a signed building contract and managed through rolling instructions. The original dispute between the contractor (Ashdrum Lodge Ltd t/a Kiernan Homes) and the employer (Ms Aysar Barbouti) settled on Day 4 of trial. The case then proceeded as a third‑party action by the employer against the supervising architect and his practice (Mr David Gilligan and Gilligan Architects Ltd).

The defendant employer sought €1,244,000 (ex VAT) for alleged supervisory failures to detect and prevent defects—principally pervasive bedding mortar defects in newly built and reconstructed orchard walls—and €89,284.30 in quantity surveying fees allegedly made necessary by the architect’s certification practices. The architects accepted liability for two discrete items: a design error in the warehouse foundations and inadequately executed haunching/capping of historic walls. The rest was contested.

Across 28 hearing days, the Court examined: the legal consequences of working without a written building contract; whether RIAI Blue Form terms were incorporated by course of dealing; the scope of an architect’s duty to inspect; whether bedding mortar defects were patent during construction; the treatment of “reconstructed historic walls”; the recoverability of QS fees as damages; and the effect of settlement on concurrent wrongdoer liability under the Civil Liability Act 1961 (ss. 17, 34).

Summary of the Judgment

Scope of the architect’s duty: The architect’s obligations under the RIAI Architect’s Agreement (Standard Services) are limited to periodic visual inspections; he is not a guarantor of workmanship or a site supervisor.
Contractual framework: Although no written building contract was ever signed, key RIAI Blue Form provisions (payments, interim certificates, retention, defects liability period, “fair value” valuation) were incorporated by course of dealing. Clause 33 (termination) was not incorporated, but the employer still had no implied right to summarily terminate mid-works.
New walls — bedding mortar defects: The Court found the pervasive mortar mixing defect was not patent during the works on periodic visual inspection. The architect was not liable for failing to detect it. Lime leaching and vegetation did not reasonably put the architect on enquiry of a systemic mix failure; visible deterioration largely post-dated lockout and incomplete capping/pointing.
Historic walls — haunching/capping: The haunching/capping was patent and inadequate. Liability is shared 50/50 between contractor and architect (design acceptance of an inadequate execution).
Reconstructed historic walls: Where sections were wholly rebuilt (“beginning, middle and end”), they were appropriately treated as new walls for specification and did not require lime mortar (as historic walls would). Conservation “matching” concerns were design choices, not negligence.
Warehouse foundations: Architect fully liable for the design failure; remedy by underpinning (approx. €35–40k; final figure to be agreed).
QS fees: The employer’s QS fees were not recoverable as damages. In any event, such costs would have been incurred at Final Account stage; additional costs flowed from the employer’s refusal to engage the contractual QS route and to allow the architect to prepare the Final Account.
Civil Liability Act 1961, s.17: The settlement did not state any quantified “consideration” for s.17(2) purposes; the Court could not use the settlement to extinguish the claim. Apportionment (third limb of s.17(2)) would have applied had liability arisen (90% contractor/10% architect for mortar defects in new/reconstructed walls), but the architect was not liable for those defects.
Civil Liability Act 1961, s.34: The client’s unilateral lockout and later dismissal of the architect, preventing completion and inspection (including during the defects liability period), warranted a reduction to nil of any architect’s liability for matters other than the conceded items (warehouse foundations and historic wall haunching).
Orders: Judgment for the employer only for the cost of underpinning the warehouse (100%) and 50% of the cost of remediating the historic walls’ haunching/capping. All other claims dismissed. Figures to be agreed post‑judgment.

Analysis

1) Precedents Cited and Their Influence

McGlinn v Waltham Contractors (No.3) [2006] EWHC 2322 (TCC); [2007] EWHC 149 (TCC): Central to calibrating an architect’s inspection duty. The Court adopted the TCC’s structured guidance: inspections are periodic and tailored to works; the architect does not guarantee defect-free workmanship; not every defect will be caught.
East Ham Corp v Bernard Sunley [1966] AC 406: Recognised that architects are not on site continuously; competing priorities can legitimately divert attention; missing a defect does not automatically mean breach.
Sutcliffe v Chippendale & Edmondson (1971) 18 BLR 149; Corfield v Grant 29 Con LR 58: Reinforced that “prolonged and detailed” interim inspection is impractical; architects aren’t guarantors; the test is reasonable skill and care, not perfection.
Jameson v Simon (1899) 1 F (Ct of Sess) 1211: Distinguished. There the architect directed cover-up without inspecting a critical substrate. Here, mortar mixing is daily workmanship; defects weren’t patent at the time by simple visual means; capping/pointing were incomplete due to lockout.
Iarnród Éireann v Dowling [1996] 3 IR 321: Apportionment between concurrent wrongdoers is by blameworthiness, not causation. Guided the hypothetical 90/10 split had mortar defect liability been established.
McCord v ESB [1981] ILRM 153: Applied in s.34 analysis. Plaintiff’s unreasonable conduct can reduce recovery to nil. Employer’s lockout and dismissal of the architect prevented contractual inspections and remediation routes.
KBC Bank Ireland v BCM Hanby Wallace [2013] 3 IR 759: Distinguished. Architects were not retained to advise on termination and were blindsided by the lockout; unlike the solicitor role in KBC, the “very thing” engaged to be done was not legal advice on repudiation.
Defender Ltd v HSBC France [2020] IESC 37; [2021] 1 IR 516: Persuasive analogy on “consideration” and “satisfaction”. Section 17(2) requires a quantified figure; a release without quantification is not a determinable “consideration” capable of extinguishing claims.
Glanville Williams, Joint Torts and Contributory Negligence (1951): The legislative parentage of s.17(2). The Court tracked Williams’ logic on preventing double recovery and encouraging settlements but insisted on a quantified consideration to operate limb one.
Keating on Construction Contracts and Jackson & Powell on Professional Liability: Grounded the Court’s approach to the architecture of duties, inspection standards, and certification.
Conservation sources (Venice Charter 1964; Florence Charter 1981): Informed the conservation approach and confirmed that visual distinctiveness between new and old can be legitimate; no negligence for “design harmony” choices within conservation norms.

2) Legal Reasoning and Path to Decision

a) Contractual scaffolding despite no signed building contract

Blue Form by course of dealing: The Court found that key RIAI Blue Form provisions were consistently operated: interim certificates, retention at 5%/2.5%, 12-month defects liability (House Practical Completion certificate), and “fair value” (cl.13) for non‑priced work. These protected the employer in an ad hoc, rolling scope project.
No fixed termination rights; no implied “walk-away”: Although cl.33 (termination) was not incorporated, the Court refused to imply a right to summarily terminate mid‑works. Tests for implied terms (business efficacy/officious bystander) failed. The employer could not lawfully lock out the contractor while works and accounts remained unfinished.

b) Scope of architect’s duty: periodic visual inspections, not supervision

Retainer: Standard Services under the RIAI Architect’s Agreement applied; no agreement to provide Additional Services. The architect was to carry out periodic site visits to observe progress and quality “generally in accordance” with contract documents; the contractor supervises, sequences, and warrants workmanship.
No guarantee via certificates: Interim certificates do not convert to a warranty of quality; they confirm value for interim payment based on reasonable inspection.

c) The mortar issue: patent vs latent defects

Nature of defect: Petrography (Sandberg) attributed failures to poor mixing—a workmanship issue—and not to specification or design. Mortar is mixed in small batches, so defects might be localised; appearance of “globules” was not credibly shown to be visible upon mixing or immediate placement.
What could be seen during the works?
- Many walls were unpointed/uncapped at lockout; deterioration accelerated after exposure through multiple winters.
- Lime leaching was sporadic and explicable by interfaces between new-on-old masonry or by water tracking where capping/pointing was incomplete. It did not imply a systemic set failure.
- The sole contemporaneous photo (Wall 10, winter 2016/17) suggested a localised issue reasonably attributable to exposure and incomplete capping; not a red flag for pervasive mix failures across 1 km of walls.
Timing matters: Mr Keenan’s first observation of defective bedding mortar (March 2018) post-dated lockout and severe weather; no contemporaneous record showed patent defects in 2016/2017. Evidence from the consulting engineer (Moloney Millar) saw nothing alarming in 2015 when retaining walls were under construction.
Conclusion: On the balance of probabilities, bedding mortar defects were not patent during the works on periodic visual inspection. The architect was not negligent in failing to identify them.

d) Historic walls: haunching, pointing, and reconstruction class

Haunching/capping: Patent and inadequate; joint responsibility. Court apportioned 50/50 architect/contractor.
Pointing of historic walls: No proof of cementitious pointing contrary to lime specification. Only one Sandberg sample from historic mortar (bedding) showed lime; no tests of historic pointing established defects. No liability.
Reconstructed sections: When wholly rebuilt, they were legitimately treated as “new” for mortar/spec. Conservation “matching” criticisms (coursing every 500 mm) were matters of taste within acceptable parameters; no negligence.

e) Quantity surveying fees

Not recoverable as damages: The employer would have had to incur QS fees at Final Account stage in any event. Larger-than-usual costs flowed from the employer’s refusal to use the contractual QS route and dismissal of the architect while he was appointing QS (Scollard Doyle). Portions of the fees claimed were litigation expert work, properly a costs issue.

f) Settlement and concurrent wrongdoers (Civil Liability Act 1961, s.17)

No quantified “consideration”: The settlement wrote off mutual claims but did not quantify consideration paid for the release. The Court held that limb (i) of s.17(2) requires a specific monetary figure; without one, it cannot extinguish claims against others.
Apportionment (limb iii): Hypothetically, had the architect been liable for mortar defects, the blameworthiness split would have been 90% contractor / 10% architect. But as no liability was found for mortar, the point was moot.

g) Contributory negligence/failure to mitigate (Civil Liability Act 1961, s.34)

Lockout and dismissal of architect: The employer’s unilateral lockout (and later dismissal of the architect) prevented completion, Practical Completion inspections for the Garden and Warehouse, and defects rectification within the (likely) 12‑month defects period. Under s.34, any non‑conceded liability would be reduced to nil in justice and equity.
Ongoing exposure: Although walls deteriorated post‑lockout due to exposure, the Court did not attribute contributory negligence for failing to protect the walls during litigation. The core failure was the initial repudiatory conduct.

3) Impact and Significance

a) For architects and construction professionals

Duty carefully bounded: Irish courts continue to police the line between periodic inspection and supervision. Architects are not “quality insurers.” Certification does not guarantee defect-free work; the contractor warrants workmanship.
Conservation projects: Legitimate room for design judgment in harmonising new and old fabric; “difference” can be acceptable under conservation charters.
Evidence discipline: Contemporaneous photos and inspection notes were decisive. A single localised image did not prove systemic defects at the time.

b) For employers/clients

Do not lock out mid‑project: Unilateral termination without notice, especially while works are incomplete, is likely to be unlawful and can nullify otherwise arguable claims via s.34.
Use the contract machinery: Practical Completion, defects liability period, Final Account with QS, and negotiated “fair value” are protective. Bypassing them can be fatal to recovery.
Settlement drafting: If relying on s.17(2)(i) to reduce claims against remaining wrongdoers, the “consideration” needs explicit quantification. Unquantified releases may be ineffective for that limb.

c) For litigators

s.17(2) ‘consideration’ requires a number: The Court aligns with Defender v HSBC reasoning: unquantified releases are not a basis to reduce claims under limb (i). Parties who want the “full value” defence must set out the figure.
Apportionment is by culpability: Iarnród Éireann v Dowling remains the touchstone. Even where defect liability might attach to an architect, it is often a modest share compared to contractor’s workmanship default.
Differentiate damages and costs: Specialist/expert fees incurred for litigation are costs issues, not damages; do not conflate Final Account QS work with expert evidence preparation.

Complex Concepts Simplified

Practical Completion: A milestone certificate indicating the works can be used for their intended purpose and only trivial defects remain. It typically triggers the start of the defects liability period and partial release of retention.
Defects Liability Period: Post‑completion window (often 12 months) during which the contractor must make good patent defects. It is part of the contract’s “self‑healing” machinery.
Interim vs Final Certificates: Interim certificates authorise staged payments; they are not conclusive. The Final Certificate follows final measurement and can be conclusive as to sums due.
“Fair value” (Blue Form cl.13): Where works are unpriced/unrated, value is set by reference to reasonable costs, prevailing rates, and agreed measurement—commonly by QS negotiation.
Bedding vs pointing mortar: Bedding mortar sits behind the visible face; it bonds stones and is structural. Pointing mortar is the visible infill at joints; aesthetically and environmentally functional, not primarily structural.
Haunching/Capping: Weathering layer at the top of walls designed to shed water away from the core. Inadequate haunching allows water ingress and accelerates deterioration.
Section 17(2) Civil Liability Act (concurrent wrongdoers): A settlement with one wrongdoer can reduce claims against others either by the value paid (if quantified) or by apportionment of blameworthiness.
Section 34 Civil Liability Act (contributory negligence): Claimant’s own fault (including failing to co‑operate with contractual processes) can reduce or eliminate recovery if justice and equity require.

Conclusion

This judgment is a significant restatement and refinement of architectural negligence principles in Ireland, set against the realities of a bespoke, rolling-scope project with no signed building contract:

Architects’ duties are confined to periodic visual inspections; they are not guarantors of workmanship, even when certifying interim payments.
Even without a signed contract, consistent use of RIAI mechanisms will incorporate key Blue Form provisions by course of dealing, including “fair value” valuation and a defects liability period.
Systemic workmanship defects in bedding mortar, caused by poor mixing, were not patent during the works and could not be reasonably identified by periodic visual inspection; the architect was not liable for missing them.
Where defects were patent (historic wall haunching; warehouse foundations design), the architect bears responsibility—50% for the former, 100% for the latter.
QS fees incurred to interrogate a final account are not recoverable as damages in principle and, in this case, were exacerbated by the employer’s refusal to engage contractual QS processes.
On settlement mechanics, s.17(2)(i) requires quantified consideration; absent that, apportionment governs. On claimant conduct, s.34 can reduce recovery to nil where the employer’s unreasonable acts derail the contract machinery for inspection and rectification.

The practical message is clear: parties should avoid ad hoc governance. Where the RIAI ecosystem is followed—even informally—it can still protect both sides. Clients who lock out contractors and dismiss architects mid‑stream do so at real legal peril, including the risk that their claims will be extinguished by their own conduct. Architects should maintain robust inspection records, but can take comfort that Irish courts will not convert periodic inspection into strict liability for workmanship.