Sector

Professional Appointments

BUSINESS OBJECTIVES ACHIEVED

Our construction solicitors can provide expert legal advice on all aspects of dealing with the professional team and consultant appointments and have varied experience of working with all the standard forms commonly used for appointments, as well as bespoke forms of appointment.

A professional consultant provides specialist design, advice or other services in relation to a construction project. Professional consultants may include architects, engineers, quantity surveyors or project managers. As with any business agreement, it is best practice for a client to appoint a professional consultant under a written contract i.e. a professional appointment, avoiding operating on the basis of the consultant's standard terms and conditions. A professional appointment sets out the obligations and responsibilities of the parties as with any contract but also sets out the scope of the services to be provided, the fees and payment terms and the personnel involved, amongst other things. A professional consultant can be appointed either via a standard form of appointment, a bespoke form of appointment or a letter of appointment.

Our expert construction solicitors can advise on the drafting of professional appointments in order to ensure the success of a project and back up the interests of third parties to which collateral warranties or third party rights are being granted. Our approach is to work with your team to advise on the appropriate form of appointment, and we will assist from the initial tender process, through the drafting of the appointment, advising upon and negotiating its terms as required. Our construction solicitors are full service and will provide assistance and advice throughout the whole process and can liaise directly with legal advisors and other parties in the negotiation process.

When drafting professional appointments, it is imperative to ensure that the appointments suit your requirements. It is always better to consider the risks at the outset and place the responsibility for them with the party most able to manage it, which is something our construction experts can assist with.

Our legal team possesses extensive knowledge and expertise in providing top-notch commercial legal services and support to clients in the construction industry. Contact us now to connect with our solicitors.

Additional Information

How do I ensure a standard of care will be met by the professional team?

Carefully drafted professional appointments will set the standard required from the consultant. A basic standard of care is to state that the consultant will use 'reasonable skill and care' in performing its services. This, however, is not considered to be the 'highest possible' degree of skill and care, as the consultant will be judged against an average consultant in the same profession. The contract might therefore strengthen the standard of care by, for example, referring to a consultant having the appropriate qualifications for a particular industry and/or being an experience consultant on projects of a similar size to the project in question. This ensures that the consultant is tied to measurable standards.

Certain words can be incorporated into the professional appointment to raise the standard of care above the norm where a consultant has held himself out as having skills and abilities above the norm. We can also incorporate a stronger obligation here for 'fitness for purpose', which means that when the project is completed it will be fit for its intended use. This means that the consultant is effectively guaranteeing that, for instance, its design will be fit for purpose. Consultants will often resist this obligation being included within the contract, however, this is something our expert construction solicitors can negotiate on your behalf.

What is professional indemnity insurance?

Professional indemnity insurance insures the professional consultant against liability for professional negligence, for example liability arising from defective design or negligent advice. In addition to the requirements of its professional body, a professional consultant is invariably required to main professional indemnity insurance as a condition of its professional appointment. This is because:

the client can claim damages for breach of contract if the professional consultant fails to comply with its contractual duty to maintain professional indemnity insurance; and

the professional appointment can set out detailed obligations, beyond the minimum required by the professional consultant's professional body.

Our expert construction solicitors will ensure a professional indemnity insurance clause is included within the professional appointment that covers the level of insurance required, who the insurer is, how long the insurance is to be maintained, how to check whether the professional consultant is maintaining professional indemnity insurance, what happens if the insurance ceases to be available on the required terms and what happens if a claim is made.

Are any other contract documents required?

It may be a requirement of a professional appointment to provide collateral warranties or third party rights (under the Contracts (Rights of Third Parties) Act 1999), in favour of other parties with an interest in the project. This may include a funder, tenant, purchaser or the employer under the building contract in some situations.

It may also be the case that in a design and build project, the professional consultant engaged by the employer may be novated to the contractor as the building contract is put in place. You would therefore require a Deed of Novation to be drafted in order to do this.

Our expert construction solicitors can advise accordingly on the correct contracts you require to be in place between all parties of the construction project to ensure your interests are protected at all times.