Architects are often asked to provide project file documents or to hand over their entire project file after completion of the works. Architects need to consider requests for documents and files very carefully, as it may indicate that legal action against them is being contemplated.
Client and Architect Agreements
In Institute Client and Architect Agreements , documents prepared by the architect remain the property of the architect, unless the copyright is assigned to the client. A client is also entitled to records proving entitlement to fee payments and disbursements or to have replacement copies if they are lost.
However the 'documents' referred to in the Client and Architect Agreement are contract documents such as the drawings and specifications, the site instructions etc, which should have been copied to the client in any event. They do not include everything the architect has collected or created in the course of the commission. The client is not entitled as of right to your 'working files'.
Insurance
Requests for working file documents can place architects in a very difficult position. On the one hand, architects wish to protect their commercial interests by meeting their client's request. On the other hand, architects may unwittingly be assisting clients to formulate a claim against them. If sufficient prejudice to an insurer's interests is caused by providing documents, professional indemnity insurers may not grant indemnity in any subsequent claim. Architects should always look to protect their own interests and deal with requests for working file documents very carefully.
The same applies when the request for documents comes from another party, such as a contractor.
Records of documents
Architects should seek advice from their broker and/or insurer whenever they receive a request for production of a file or documents from their file, if there is any suggestion of someone contemplating taking action against them.
Solicitors
If a request for documents or files comes from a solicitor, it is highly probable that the solicitor's client is either contemplating or involved in litigation. An architect should carefully assess such a request for documents. If satisfied the documents are not injurious to their interests, for example, if there is known legal action between the owner and the contractor, they may decide to comply with the request.
Parties to litigation are required to 'discover' or 'produce' to each other all relevant documents in their possession, power or control. When an architect provides documents to a client, the client must also 'produce' the documents to the other party in litigation.
Handing over documents or an entire file without properly considering the request is a dangerous practice. Even though you may not appear to be involved directly, you could find yourself joined in the court case by either party to the case. Again, if there is any suggestion that there is a problem involving you, you should notify your insurance broker or insurer.
Subpoena
On occasion, an architect may receive a subpoena requiring them to produce a file or documents to a court or tribunal. A subpoena is an order of the court compelling the party named in the subpoena to produce the designated documents. Failure to comply with a subpoena attracts a heavy penalty.
Although the subpoena is a court document, it will usually be sent to you by lawyers. An architect should not produce the documents to anyone but the court, as instructed on the subpoena.
A subpoena should be accompanied by conduct money to cover the expense of locating the requested documents and delivering them to the court. If an architect does not receive conduct money, the solicitor responsible for the subpoena should be contacted.
Records of documents
A record of the documents provided to a client or any other person in response to a request should be kept. If it is not practical to keep a record copy of everything provided, it is prudent to retain document transmittal forms and any receipts in relation to documents provided to clients or their solicitors.
Indemnity
In some cases, it may be possible to obtain an indemnity from a client, containing an undertaking not to sue the architect for any matters arising from documents or copies of documents provided to the client. To ensure that any indemnity will be able to be relied on, it is advisable to seek this through a solicitor. A refusal to provide an indemnity might clarify the intentions of the client.
Disclaimer
This content is provided by the Australian Institute of Architects for reference purposes and as general guidance. It does not take into account specific circumstances and should not be relied on in that way. It is not legal, financial, insurance, or other advice and you should seek independent verification or advice before relying on this content in circumstances where loss or damage may result. The Institute endeavours to publish content that is accurate at the time it is published, but does not accept responsibility for content that may or has become inaccurate over time. Using this website and content is subject to the Acumen User Licence.