Lawyer in the field of disputes arising from the designing.


date 14 Sep 2019

This seemingly inextricable thing with construction - designing - sometimes becomes the object of close attention of interested parties and a way to earn extra money for cunning lawyers.

In general, who knows, then he will understand that it is often extremely difficult to unfasten design errors from construction errors, and sometimes it becomes a general problem to identify them.

The very core of the relationship regarding design - a contract for the design work - is not always any incomprehensible or controversial or containing unclear provisions. No, such contracts for the most part, despite the multi-page nature, are of the same type: it is clear who, what and how should do it and what everything should correspond to. Who is protected here? At first glance, that's all. But if something unpleasant happens (for example, the designed building collapsed), then the search for the culprit begins, as usual. And, by the way, arbitration proceedings regarding the quality of design work, as I see it, are not such a frequent thing, a lawyer here does not always have a place to turn around. However, if people have suffered as a result of such an (approximate) collapse, the lawyer falls into the category of necessity, since criminal cases are initiated in such cases easily and unconstrained, but they are not condemned for miscalculations in the design in the same ways (remember Transvaal Park "). However, the presence of a lawyers knowledge of design does not always become decisive, and sometimes even unnecessary thing.

It is worth noting that the cases that arise as a result of architectural supervision and construction control, which are often carried out by the very same people who prepared the project documentation, are organically fit into the category of design disputes. This last aspect is more likely to relate to services and is of a special nature that deserves separate consideration.

So, design disputes arise, flowing into the judicial plane (all of the above can be applied to criminal cases, where the question of responsibility is made dependent on the quality of all stages of the work, from the project to the construction). Unfortunately, and here I must admit, the specifics of these cases are almost absent. Why "Unfortunately? Here's why: the legal process for such cases is standard. In fact, it is rare that a judge will take responsibility for creativity.

The entire arbitration process comes down to a formal assessment of the provisions of the contract for design work, in which the contractor usually has to do everything according to the law and as required by the assignment, industry norms and rules, well, and the customer must pay. And, if the case really rests on the quality of the documentation, the court will order a forensic examination secondly, and this will be the decisive argument in favor of one or another of the litigants. No amateur performances, no left-right: what the expert said is true. Why is there a lawyer, why a lawyer in the field of design? Seems not needed.

But what if in such a dispute one of the participants feels right and unconditionally believes in the absence of critical errors in the documentation that he developed? Indeed, practice shows that even those experts whom the court selects as third-party specialists are not able, objectively and at the level at which the technical documentation was developed, to evaluate it. Now in the market of designers there are many specialists, both domestic and foreign. No offense to the first, foreign ones are given preference, especially when it comes to global, mega-functional complex construction projects. However, the specifics of interaction with customers of such large projects is that in fact, attracting domestic designers, they use the results of foreign works. Foreigners transfer and deliver the blueprints to their Russian colleagues, and if everything goes smoothly, mistakes do not creep in.

But sometimes in the process of transmission something is missed, lost, or already during the construction process there are failures, inconsistencies, retreats. One way or another, the person who officially acted as the author answers, however ... however, loopholes appear here, using which you can get rid of the customer's claims. These loopholes are individual in each case. The sauce of their filing depends on the situation, as well as the perseverance and skill of the lawyer who defends the side of the contractor, the manufacturer of the project. Especially considering that the larger the project, the more designers, builders, contractors and subcontractors participate in it, and sharing responsibility can be very difficult.

In addition, the real, fussy center of such disputes, as a rule, is not the legal, but the technical aspect, which consists in finding and recognizing an error in the technical documentation and finding an unambiguous causal relationship between such an error and a particular loss for the customer or anyone yet. And since the question of an error, the more so an error in the project, is infinitely wide, it is here that the litigants stumble, and with them the court. After all, the very question of the quality of the documentation or the error in it - if you approach it critically - is quite ephemeral.

Indeed: what to consider as high-quality documentation? What is considered as a mistake? Is such a category as a design error possible at all? What is the mistake? - in the calculation of loads, the geometry of the bases, the possibility of the project as such? Indeed, calculation errors are far from always total and entail negative consequences for a building or structure. The complexity of buildings is such that even a few obvious design errors cannot be brought under the cause, cannot be set as the cause of one or another shortcoming in the constructed building.

Moreover, there is a flip side: even the obvious correctness of load calculations, the correct geometry of the supports and foundations, the correctness of the design as a whole is not always a guarantee that the building will stand safely (will not collapse completely, its part will not collapse, any construct flaws and stuff). And the search for the guilty can be fruitless here. Yes, you can really get lost here, so it is necessary and relieved to appoint construction examinations, if you really need to figure it out. But further. Often the project is done by the designer, and the builder is the expert.

It is possible to discuss about the difference in professions, but here it is, a very significant doubt: can the projector check constructor (or vice versa) and to what extent the conclusions of such an examination will be valid? It is worth noting that construction examinations are also not always able to identify the true reasons, for example, collapse of structures or some other troubles with the constructed building, if it is postulated that the cause of these troubles is a wrong project.

Often, in the planning documentation some violations of departmental codes of rules, standards are found, and this is tied to a particular negative result without sound reasoning, a description of the causal relationship, and, even more unpleasant, such conclusions are accepted on faith by the courts.

In fact, in order to reveal whether it really is, a remarkable intellectual work is required, coupled with a painstaking analysis of each rule, normative, drawing, in general, comparison and contrasting, identification and clarification of meanings, and the second block is the study of what occurred in practice, during construction - were there any mistakes (such as violations) that led to damage were made there, were building materials used properly; that in executive documentation and so on.

Construction experts do not always have the opportunity to do this, but for a lawyer practicing in the field of design disputes and conducting a specific case, these are always and everywhere clues that help protect your client in a lawsuit. And there is one more point: judges will not always be able to and will not want to hear such a lawyer, since the materials offered for review often have a huge amount and require the lion's share of the time spent to at least get acquainted with them.

Then the easiest way is to open an expert opinion in its resolutive part and agree with the conclusions without getting acquainted with the motivation and texture. But here, as already mentioned, everything is left at the mercy of the efforts and restlessness of the lawyer in the field of design. Not otherwise.

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