On 15 February 2023, the District Court of North Holland gave judgment in a dispute over the performance of a design agreement (ECLI:NL:RBNHO:2023:1007).
A music producer commissioned a design agency to design the interior for a studio complex. The order confirmation contained the following clause: ‘The design of the sound studios will be done in cooperation with [the sound engineer]; with regard to acoustics and technology, the design of these rooms lies with [the sound engineer].’ The sound engineer had been contracted by the principal.
Although the principal and the sound engineer were enthusiastic about the design agency’s designs, the principal leaves several invoices from the design agency unpaid. Further investigation by the principal reveals that the designs did not sufficiently muffle the sound in the rooms, which meant that adjacent studios could not be used at the same time. The design agency claimed in court payment of the invoices, which contained various additional work items due to change requests from the principal due to ever-changing views of the sound engineer.
The court considered that the principal was responsible towards the design agency not only for mistakes made by the sound engineer, but also for the efficient coordination of the design agency’s work with that of the sound engineer within the prevailing acoustic and structural requirements. After all, the design agency was not responsible for the sound engineering side of its designs. The producer was also aware that the design agency had no experience in designing sound studios. That the design agency’s designs were, in the principal’s view, useless is the principal’s responsibility according to the court. For the same reasons, the additional work costs must be borne by the principal.
It does not follow from this judgment whether the principal took legal action against the sound engineer. Given the nature of the problems, that might have been more obvious. This judgment does show that a principal should properly define the division of responsibilities when multiple contractors are contracted. Had the principal, for example, contracted the design agency as the main contractor and the sound engineer as its subcontractor, the principal could have limited the risk of falling between two stools (because both contractors point at each other). Such (sub)contracting constructions are common in yacht building.
Do you have questions about design agreements or other (sub)contracts, or are you interested in the possibilities to limit the risks for principal or contractor in similar situations? If so, feel free to contact us.
