Construction Design Liability in UAE: Architect and Engineer

A design consultant's exposure in the UAE does not begin when something fails. It begins when a drawing is sealed and issued for construction, because from that moment a contractor is entitled to build to it and an authority is entitled to approve against it. Every claim that follows works backwards from that document and asks one narrow question: was the design what a competent member of the profession would have produced, and if it was not, what did the difference cost?

Related services: our construction contracts practice advises consultants, contractors and employers on design liability under Dubai and UAE construction law.

Where the duty comes from

Three sources of obligation sit on top of one another, and most claims engage all three at once.

The Civil Code. Articles 872 to 883 govern contracts for work — the muqawala relationship — and deal expressly with the position of the architect and the engineer alongside the contractor. The designer must perform with the care and skill expected of the profession. Where the contract is silent on a point, the customary standard of the profession fills the gap. Liability under these provisions is fault-based: a claimant has to show that the design fell below the standard, not merely that a defect exists. The same articles also make the designer answerable, together with the contractor, for defects that threaten the stability or safety of the works. A consultant who prepared drawings but was not engaged to supervise construction answers for the design; a consultant who supervised answers for the supervision as well.

The consultancy agreement. The appointment defines the services, the deliverables, the stages at which the design is fixed, and the standard by which it will be judged. It is also where the limits sit. Whether the consultant carries a capped liability or an open one, whether consequential loss is excluded, and whether the employer's approval of a drawing does anything at all are questions answered by the contract rather than by the Code. Weak or borrowed wording here is the single most common reason a claim that should have been modest becomes existential. Our contract drafting team works on these appointments before they are signed rather than after a claim lands.

Regulatory approval. Dubai Municipality's building regulations, the codes applied by Abu Dhabi's planning and municipal authorities, civil defence requirements for fire and life safety, and the rules of whichever free zone or master developer controls the plot all impose technical requirements independent of the contract. Non-compliance is an administrative matter in its own right — refused approvals, stop-work orders, penalties — and in a civil claim it is close to self-proving evidence of breach.

Skill and care, or fitness for purpose

These are different promises and they are frequently confused.

A duty of skill and care asks whether the consultant did what a reasonably competent professional would have done. Evidence of accepted practice, published standards and peer review is a defence, even where the outcome was disappointing.

Fitness for purpose asks whether the finished design does the job the employer needed it to do. Compliance with good practice is not an answer. If a design that met every applicable standard still fails to achieve the stated function, the consultant is liable. Employers and contractors in the UAE routinely propose fitness-for-purpose wording, sometimes buried in a technical schedule or a design-and-build subcontract rather than the main conditions.

The practical point is an insurance one. Professional indemnity cover is written around negligence. A promise that the design will achieve a specified result is a contractual guarantee, and policies commonly exclude liability assumed under such a guarantee. A consultant who accepts fitness for purpose may therefore be carrying that risk personally. Where an employer will not remove the wording, the alternative is to define the purpose narrowly, tie it to stated design criteria supplied by the employer, and record the assumptions the design depends on.

The errors that produce claims

1. Load and structural miscalculation. Errors in loading assumptions or in sizing structural elements. These are the most serious because they can produce partial or total collapse, and because failure that injures people brings the criminal law into the picture alongside the civil claim.
2. Specification failures. Materials or grades unsuited to the environment or the loading — concrete mixes, reinforcement detailing, waterproofing, façade fixings. The failure often surfaces years into service, by which time the record of who specified what has to be reconstructed.
3. Non-compliance with codes. Designs that miss a fire, accessibility, zoning or environmental requirement. These generate two problems at once: an authority that will not approve or certify, and an employer whose programme has been broken.
4. Omissions and coordination gaps. Drainage, fire stopping, builder's work openings, clashes between disciplines. Individually minor, collectively the largest source of variation and delay claims, and the hardest to defend because the missing item is visibly missing.

A worked example

A structural engineer on a residential tower applies a wind loading assumption taken from an earlier project on a different site. The building is completed and occupied, and residents on the upper floors report movement in high winds. The building is safe; it is uncomfortable, and units become hard to let.

The employer's claim is for the cost of remedial damping works, the rent lost while they are carried out, and the reduction in value of the affected units. The engineer's defence turns on documents that either exist or do not: the site-specific wind data relied on and who supplied it, the criteria written into the brief, whether serviceability limits for occupant comfort were stated anywhere, and whether the calculation package was checked before issue. If the brief was silent on comfort criteria and the engineer designed to the applicable code, the argument is about scope. If the engineer imported an assumption without checking it against the site, the argument is about competence — and that is a much shorter argument.

Who can bring a claim, and for what

The employer sues on the contract: cost of rectification, the cost of consequential delay, and in some cases diminution in the value of the asset. Contractors bring claims where a defective or late design has disrupted the works, usually through the employer but sometimes directly where a design-and-build chain puts the consultant under the contractor.

Third parties are the exposure consultants tend to underestimate. Subsequent purchasers, tenants and occupiers who were never party to the appointment can pursue a designer in tort under the Civil Code where a defect causes them loss or harm, and the contractual cap that protects the consultant against the employer does not protect it against them. Where a defect threatens stability or safety, liability can be shared with the contractor, which means a consultant may be pursued for the whole loss and left to recover a share from a contractor that may no longer be solvent.

Separately, licensing authorities can suspend or withdraw a professional registration, and gross negligence causing injury or death can attract criminal liability.

One defence is weaker than consultants expect: employer approval. Signing off a drawing is not the same as taking responsibility for it. An employer who approves a design is generally taken to be confirming that it meets its requirements, not certifying that the technical content is correct — that was what the consultant was paid for. Approval helps only where the consultant recorded a specific reservation, or where the employer directed a course the consultant advised against and that advice is on file.

What a tribunal actually looks at

Onshore, technical issues in construction disputes are usually referred to a court-appointed expert, and the expert's report tends to shape the outcome far more than the pleadings. That has a direct consequence for how a consultant should behave from the first sign of trouble: the material that will decide the case is the contemporaneous record, and it must exist before anyone thinks of a claim.

What matters is the design file — calculation packages with their assumptions stated, the issue register showing what was released and when, requests for information and the answers given, employer instructions and approvals, records of design changes and who asked for them, and evidence of internal checking and peer review. A consultant who can show that a decision was taken on stated criteria, reviewed, and communicated is in a materially different position from one producing reconstructed explanations after the fact.

Contract terms that do the real work

• Scope and exclusions. Say what is not being designed. Interfaces with specialist subcontractor design are where responsibility disappears.
• Standard of care. Skill and care, expressed once and not contradicted elsewhere in the documents.
• Liability cap. A cap expressed as a figure or a multiple of fees, with a clear position on consequential and indirect loss.
• Reliance on employer information. Site investigation data, surveys and design criteria supplied by others should be stated as relied upon rather than verified.
• Indemnities. Read them for what they give away; an indemnity can quietly reinstate liability that the cap was meant to remove.
• Insurance. Professional indemnity cover at a level that matches the project, maintained for a stated period after completion, with the contract obligations kept inside what the policy will answer for.

Choosing the forum

Most substantial construction contracts in the UAE provide for arbitration, governed by Federal Law No. 6 of 2018 on Arbitration. A clause is only useful if it settles the seat, the institution, the number of arbitrators, the language and the governing law, and if it is consistent with any multi-tier provision requiring engineer's determination or amicable settlement first. Tiered clauses are frequently drafted so that the earlier steps are conditions precedent, and a claimant who skips them can find the tribunal has no jurisdiction yet.

Legacy clauses need checking as well. Institutions and their rules have changed in recent years, and a clause naming a body that no longer administers cases invites a jurisdictional fight before anyone reaches the merits. Our arbitration practice reviews these clauses at drafting stage and runs the resulting proceedings; the same team handles construction dispute resolution before the onshore courts where no arbitration agreement exists.

Before the next appointment

1. Check the standard of care in the draft and remove any fitness-for-purpose or "shall ensure" wording that the insurance will not follow.
2. Confirm the liability cap, the exclusion of consequential loss, and that no indemnity cuts across either.
3. Map the regulatory approvals the design must satisfy, and identify who is responsible for obtaining each.
4. Fix the scope boundary with specialist designers in writing, discipline by discipline.
5. Set the internal checking regime for the project and record that it happened, not merely that it exists in a manual.
6. Keep the design file, the RFI log and the instruction record current from day one.
7. Notify insurers on the first circumstance that could give rise to a claim, not when the claim arrives.

Design liability in the UAE is not unpredictable. It is decided by documents that a consultant controls — the appointment, the approvals, and the design record — and the time to work on those documents is before there is anything to argue about. Our construction law team acts for architects, engineers and design-and-build contractors across the Emirates.

Disclaimer

This article is for general information only and does not constitute legal advice. Readers should obtain advice on their own circumstances before acting on anything set out above.

Related reading

• Defects liability and warranty claims in the UAE
• Professional negligence claims against construction consultants
• Design rights and intellectual property in construction projects
• The legal framework governing construction in the UAE