Last year the British Property Federation's controversial consultants' agreement sparked much ill-feeling. Will a new contract by the Construction Industry Council heal the rift?

I am still getting used to the label "the consultant's friend". For more than 15 years I have advised developers and occupiers on the procurement. Much of my time has been spent arguing with consultants over terms of appointment, novation agreements, collateral warranties and the like. I have tried to be a fair opponent; equally, my job is to defend the interests of my employer clients.

So it comes as a bit of a shock when the same consultants shake me warmly by the hand and call me their "saviour". At times I feel a bit of a fraud. After all, isn't this just another appointment contract?

The Construction Industry Council's consultants' contract really is different - at least, I think so. It is intended for a particular market - experienced clients working with experienced consultants on large construction projects - and does not replace the standard forms published by, for example, the RIBA and ACE. The CIC was determined to simplify the process of appointing consultants for big commercial developments, and in so doing to reduce the amount of time and money spent by both sides in negotiations. It recognised that, in order to achieve this, it would need to produce a contract that was acceptable to the professional indemnity insurance market, and - importantly - to clients, funders and tenants.

It is intended for experienced clients working with experienced consultants on major construction projects

I may be biased, of course. But I think the draft consultants' contract does this rather well. It is drafted in plain English, with a clear layout and logical numbering. It is flexible enough to cater for different procurement methods and fee structures. It has had a long gestation period, with many lively debates on exactly how particular clauses should be worded to achieve the right balance. This is not just semantics; as those who have lived through an appointment negotiation will know, it is often the most arcane details that give rise to heated arguments. Frequently the client is left wondering whether the lawyers are simply arguing points for their own sake, and how this really adds value to the process. The CIC's mission is to short-circuit this "ritual dance" and to find middle ground on key points from the outset.

So where does the consultant's contract stand on the difficult issues? Clients will be pleased to see that:

  • The standard of skill, care and diligence expected is that of a competent consultant experienced in providing similar services for similar projects.
  • There are robust obligations in relation to compliance with instructions, brief and programme.
  • There is no net contribution clause.
  • The copyright licence is not subject to the payment of fees due.
  • Third parties are given rights via the Contracts (Rights of Third Parties) Act 1999, rather than collateral warranties.
  • If the consultant wishes to claim additional fees it must give prompt notification of its intention to do so.
  • The client may terminate the appointment on 14 days' notice, without triggering a loss of profit claim.
On the flip side there is a limitation of liability provision. We know that some clients will squeal at this, and a few may reject it out of hand. However, the reality is that caps on liability are increasingly common, and many clients will accept them as a reasonable response to the pressures that consultants face. The inclusion of this provision has unlocked a number of concessions from the CIC's constituent bodies in other areas and it should not be looked at in isolation, but as part of an overall package. And finally: will it put lawyers out of business? That remains to be seen. If it does, I'm sure many people will see it as a price worth paying.