Lunchtime Webinar Report: Consultants – Is your duty of care under attack?

On the 3rd of May AIA UK members were invited to attend another of Beale and Company’s popular lunchtime legal webinars. The subject was how the use of new standard owner/consultant contracts place a more onerous duty of care requirement on architects than the traditional “reasonable skill and care” clauses of earlier contract versions. Entitled, “Is Your Duty of Care Under Attack?”, the webinar was presented by Will Buckley and Simi Sivapalan. Attendees received one continuing education learning unit for attending.

Traditional standard forms of contract, such as those provided by the RIBA and ACE make statements such as “exercise reasonable skill and care in conformity with the normal standards of the Architects’ profession” and “exercise reasonable skill, care and diligence in the performance of the Services”. Architects need to be aware that new versions of standard forms of contract from the ACE, FIDIC, NEC4, and the RIBA provide for an elevated duty of care! These contracts have moved beyond the use of “reasonable skill and care” with clauses such as those shown in the slides below.

The new contracts also have more onerous requirements regarding fitness for purpose, specification of deleterious materials, and use hard to define terminology such as “in the spirit of mutual trust and cooperation”. The webinar also addressed non standard contracts like those often provided by clients. These must be reviewed carefully as they often contain clauses that impose an even higher standard of care. Watch out for clauses such as those illustrated in the slides below.

The presenters discussed several recent legal cases to illustrate the challenges an elevated duty of care can present to design professionals. The important “take aways” from this fascinating webinar are:

• Where possible, try and limit standard of care to “reasonable skill and care”
• Include an overarching duty to exercise reasonable skill and care
  •  But remember, an obligation to use reasonable skill and care is not an overriding provision unless stated
  • Best practice to qualify strict obligations by “exercising reasonable skill and care” “subject to” wording may not always be sufficient
• Check for hidden obligations - strict and fitness for purpose obligations may not always be obvious Civil liability policy is much preferred to a negligence based one!

For further information on this subject, Will Buckby can be contacted at 020 7469 0411 and w.buckby@beale-law.com

Also, AIA UK members have access to the free Legal Helpline provided by Beale & Co at (0) 20 7469 0400 (please quote “AIA UK Helpline”).

By Michel Lischer FAIA

AIA UK LEGAL SEMINAR

Legal Lecture IV - Novation of Architects to Contractors

13 May 2015

An increasing number of projects are design-build with the contractor being responsible for preparing the design and managing the design team.  This often means the architect starts working for the client, then finds him or herself novated to and working for the contractor. The process of novation is full of pitfalls for the unwary architect!

Novation was the topic for the fourth in the AIA UK's series of legal seminars.  Presented by solicitors from Beale and Company, this event took place at Herman Miller's London showroom on April 15th. Solicitors Andrew Croft and Ben Mullard presented a lively and informative discussion about novation to an enthusiastic audience of chapter members and guests.

Andrew and Ben made a distinction between assignment and novation, noting that novation is more fundamental and requires careful consideration and understanding of the responsibilities and liabilities.  It gets more complex as there are actually two types of novation that can be utilized.  

These are switch and ab initio. The terms and conditions of the novation agreement must be fully understood by the architect in order to gage the risk one is assuming.  Andrew and Ben pointed out, however, the novation agreement is the architect's opportunity to renegotiate the design contract with the contractor and make changes, if desired!

The discussion was fascinating and generated a number of questions from the audience. The increasing use of novation by clients makes this an important subject for architects. Clearly, novation of design consultants is a "hot topic" and may be looked at in greater detail at a future legal discussion.

Thanks go to Beale & Company's Andrew Croft and Ben Mullard for their presentations. And, to Shazia Sheikh at Herman Miller for her hospitality in hosting us! Michael Lischer FAIA

Author: Michael Lischer