International Construction Law Review
DESIGN ADEQUACY: IS IT WARRANTED?
Tony Dymond
Partner, Debevoise & Plimpton LLP
Carl MicarelliCounsel, Debevoise & Plimpton LLP
Roni Pacht
Associate, Debevoise & Plimpton LLP
Azeezah Aazrah Goodwin
Associate, Debevoise & Plimpton LLP
INTRODUCTION
This article considers the allocation of risk under design and build contracts in circumstances where a contractor has entered an agreement requiring it to ensure both (i) conformity with design specifications prescribed by employer; and (ii) compliance with a performance or fitness for purpose warranty.
This article is divided into two parts. Part 1 considers the English law approach and recent decision of the UK Supreme Court in the Robin Rigg case in which the court construed the contractor’s fitness for purpose warranty strictly, notwithstanding that failure to satisfy the warranty resulted from compliance with a defective design standard specified by an employer. Part 2 offers a comparative analysis between the approach adopted in Robin Rigg and the application of the Spearin Doctrine in US law, under which owners are deemed to impliedly warrant design adequacy. The authors consider the Canadian line of cases referred to in the Robin Rigg judgments, but a comparative analysis of Canadian jurisprudence is beyond the scope of the paper.
PART 1: ENGLISH LAW APPROACH
(a) Robin Rigg
On 3 August 2017, the UK Supreme Court delivered its judgment in MT Højgaard a/s v E.On Climate and Renewables UK Robin Rigg East Ltd and Another [2017] UKSC 59 (“Robin Rigg”). The dispute arose in relation to a design and build contract of a kind described by Lord Justice Jackson in the following terms:
Pt 1] Design Adequacy: Is it Warranted?
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